Playing God: Mary must die so Jodie may live longer.

• Author: Lugosi, Charles I.

ABSTRACT: In 2000, conjoined twins were born in England. What made this case unique was the fact that if the twins remained unseparated, medical opinion held they would die; if they were separated one twin would live, and one twin would die; the parents refused to consent to separation; and the hospital charged with their care brought the matter to court. The trial court and court of appeal approved of the surgery, which was promptly performed, resulting in the immediate death of the weaker twin. The author argues that there is no justification in law or morality for the courts' decisions, and that, in fact, the courts' decisions overrule prior precedent and effectively divorced law from morality.

This is the writing that was inscribed: MENE, TEKEL, and PERES. These words mean: MENE God has numbered your kingdom and put an end to it; TEKEL, you have been weighed on the scales and found wanting; PERES, your kingdom has been divided and given to the Medes and Persians. Daniel 5:5, 25-28 [Written by a detached human hand on the pallace wall in Babylon the night the Chaldeans were overrun by the Medes and Persians and King Belshazzar assasinated.]

This is the Judgment of the Court: Mary, your days are numbered and your life will be terminated; on balance, your life is not worth preserving since you are severely disabled and not viable; the doctors will separate your body from your sister's body and you will be sacrificed in order to perserve her life. [This is a paraphrase of the judgment of the English Court of Appeal in the case of Mary and Jodie.]

In the late summer of 2000, a news story from England about conjoined "siamese" twins gripped the attention of millions of people around the world. While the birth of conjoined twins was an extreme rarity in itself, what made this case so unique were the moral, ethical, religious and legal dilemmas facing the parents, the doctors, the hospital and the courts. It all boiled down to this: if the twins were to be separated, it would be at the cost of killing the one who was weaker. Without the operation, prospects were bleak and both twins would most likely die in early childhood. With the operation, the one who was stronger had a better chance to live longer. In the end, the English Court of Appeal overruled the refusal of the parents to give consent for the operation and gave the proxy consent the hospital sought, clearing the way for the surgery. (1) It was a highly controversial result, the Court seeing itself "on the sharpest horns of a dilemma," having to choose between "the lesser of two evils." (2)

I will argue that it was wrong to violate the bodily integrity and sanctity of life of the weaker twin. Moreover, the interests of medical science, represented by the doctors and the petition by the hospital seeking court approval for substituted consent, may never replace the absolutely essential voluntary informed consent that was never obtained from the infant girl who was sacrificed. While the parents refused consent, protecting their daughter's absolute inviolate sanctity of life, it would have also been wrong for them to consent to the murder of their child. The Court could have ruled that no one, not even the parents, had the right to consent to the operation that would deliberately take the life of this infant. Judicial proxy consent on behalf of a human being incapable of giving informed consent to "treatment" which results in involuntary human sacrifice violates the fundamental principles of individual autonomy and the Nuremberg Code. (3) The voluntary assumption of risk in surgery for possible gain is one thing; it is quite another to be forced to undergo surgery and be murdered in the process. In this case, no attempt was made to utilize the doctrine of substituted judgment, (4) which may have led to a different outcome.

For the Court to sanction the murder of an infant with full legal personhood is a jurisprudential watershed. By weighing in the balance who is worthy of life and who is marked for an accelerated death, the Court demonstrated that equality is an abstract hypothetical ideal that may be disregarded in the difficult case. It should signal an alarm that no human life is safe from involuntary sacrifice for the practical purposes of others who may be stronger and more powerful. This development is another step down the "slippery slope" devaluing the sanctity of human life. It is the inevitable result of the same kind of utilitarian philosophy and legal reasoning that justifies killing unborn babies by abortion.

In this case, the Court revealed it was willing to play God and make life and death decisions, but on an unfair scale of values prejudiced against those persons who are vulnerable, helpless, weak, and disabled, and who cannot speak for themselves. It will be argued that it is morally unacceptable for a court to permit the taking of someone's life by overruling a valid parental decision generally accepted in society, when the court's decision might be wrong. All doubt should be resolved in favor of preserving life, because once an innocent life is taken, it can never be restored.

I will further argue the Court exceeded its jurisdiction by giving an advisory opinion on criminal liability for murder in advance of a proposed homicide. The Court did not need to protect the doctors by in effect granting them immunity from criminal liability. If the Court found it impossible to accede to the hospital's request for proxy consent without giving its opinion on the question of criminal liability, then no consent in the civil case ought to have been given at all. Only an English jury, after the fact, has the jurisdiction to render a verdict, whether or not the crime of murder was committed. By issuing an opinion on criminal liability in a civil case, the Court created a chilling effect on the police and the office of the coroner, who in the ordinary course, would have of their own volition investigated this case and in all likelihood, have instituted criminal proceedings resulting in a charge of murder. The Court put itself into a hopeless conflict, by being a party to an agreement to cause the death of an innocent infant girl, and has circumvented the normal course of criminal procedure. In doing so, the Court has lost not only its impartiality, but also its credibility.

It is beyond the scope of this article to discuss how in the span of one hundred years the English Court has reversed itself, by now permitting the defense of necessity in circumstances where the murder of one human being is justified to save the life of another human being. No longer is drawing lots (which assumes the inherent equality of each human being) used to decide who must be tossed "overboard" to save the rest in the "overloaded leaky lifeboat." It is now legal to make value judgments among members of the fully human class on who is more deserving of living, and who is weaker and destined to die. The moral authority of the Court is now seriously undermined by the absolute divorce of law from morality.

This article puts the Court of Appeal on trial. First, it examines the facts of the case, and the individual reasons of the judges. Second, it identifies the underlying ethical philosophy driving the Court's decision and those that were either ignored and rejected. The doctrine of informed consent is examined, as the shield against utilitarian evil. The divorce of law from morality is exemplified by contrasting judicial decisions one hundred years apart on the issue of the murder of innocent human life to save the life of others. The Nuremberg Code and the doctrine of substituted judgment are discussed and applied to the facts of this case. Third, the article focuses on the criminal law and questions the applicability of the defense of necessity and the wisdom of providing an advisory opinion prior to a murder being committed. And fourth, it concludes that the Court erred in its decision, that the parents were right in refusing to give consent, and that no consent to murder can ever be given on behalf of another human being.

Analysis of the Facts and Rationale of the Judges

The Facts

On August 8, 2000 two little girls were born at forty-two weeks following conception. (5) Their combined weight was 6 kg. (6) One was called "Mary" and the other "Jodie." (7) They were twins. They were also conjoined, meaning attached to one another. They were fused together at the pelvis. The lower ends of their spines were fused and the spinal cords joined. They shared a single torso forty centimeters long. Each infant had her own brain, heart, lungs, liver and kidneys. They shared a common bladder. Each had a pair of legs. Technically, to the doctors, they were known as ischiopagus tetrapus conjoined twins. (8)

Mary's brain was severely abnormal and she was likely to have learning difficulties and suffer epileptic seizures. (9) Although she was responsive to stimulation, it was uncertain whether Mary could feel pain or pleasure, from the facial expressions she was able to make. (10)

Jodie's heart and blood vessels were connected to Mary in such a way that Jodie's heart bore the function of supporting her sister's circulation. (11) Jodie's heart at three weeks was stable and coping well with supporting herself and her sister. (12) As of September 13,2000 Jodie's heart remained steady and there was no sign of failure. (13) The doctors believed that eventually the strain of supporting her sister would be too much for Jodie and lead to heart failure. (14) Assuming this was true, absence of medical intervention meant that both little girls might die as soon as six months or live together for several years, but not likely for the long term. (15) It was impossible to accurately estimate an upper limit to life expectancy. (16) The longer Jodie's heart worked normally, the higher was the life expectancy. (17)

Mary's heart and lungs were in poor condition. There was no blood flow into her...