Conjoined twins: the ambiguity of double effect reasoning

This essay explores the ethical debate that surrounds last year's case of conjoined ischiopagus tetrapus twins, Mary and Jodie. More precisely, it focuses on those arguments that involved double effect reasoning (DER). A classic model of DER is offered, followed by a summary of the opinions of theologians and philosophers in debating whether such reasoning could be used to justify the surgical separation of these babies. The purpose is to show the "give and take" of ethical discourse, how complex and demanding the application of DER often is, and how elusive finding a "right answer" can be.

One into two will not go: conceptualising conjoined twins

This paper is written in response to controversial judicial decisions following separation surgery on conjoined twins "Jodie" and "Mary". The courts, it is argued, seem to have conceptualised the twins as "entangled singletons" requiring medical intervention to render them physically separate and thus "as they were meant to be", notwithstanding the death of the weaker twin, "Mary". In contrast, we argue that certain notions, philosophical and biological, of what human beings are intended to be, are problematic. We consider three compelling conceptualisations of conjoined twins and advocate a model that conceives them as two psychologically separate individuals who happen to share a body, the sharing of a body being integral to the individuality of each twin. While we reject an "essentialist" view of the conjoined state, a view which might render separation surgery unthinkable in all cases, we nevertheless argue against an "adversarial" interpretation of conjoined twins' respective best interests. We maintain that the physical entanglement should be regarded as a shared problem rather than one posed by one twin to the other. And if, after deliberation, separation surgery is deemed the "least detrimental alternative" or the "lesser of two evils", then there should be recognition of what conjoined twins will lose, as well as gain, through separation. The current drive to separate twins at all costs may evince a deeper unease with bodily configurations that appear to threaten the premium that the Western ethical and legal tradition places on personal sovereignty, and the physical circumscription that such sovereignty assumes.

Necessity and death: lessons from Latimer and the case of the conjoined twins

The availability of the defence of necessity in cases of homicide is a complex issue in both Canadian and British jurisprudence. This article examines the divergent judicial and academic views and argues that, while necessity may be available for certain kinds of homicide, it should be rejected as a legitimate defence to intentional killings. The author looks closely at two recent cases in which the question arose as to whether or not killing a human being is ever justifiable or excusable on the basis of necessity: the Canadian case of R. v. Latimer and the British case of Re A (Children). The author argues that the approach of the Latimer court is preferable, advancing this position from a number of angles. Underlying rationales for the defence of necessity in Anglo-Canadian jurisprudence are examined, as well as the conceptually similar defence of duress, both at common law and in s. 17 of the Criminal Code. Both of these points are reinforced and analyzed via a discussion of the sanctity-of-life principle in Canadian criminal law. The article makes clear the essential nature of the issues raised in both Latimer and Re A (Children), as they engage fundamental questions of value for our society.

The greater good?: issues of proportionality and democracy in the doctrine of necessity as applied in Re A

This article examines the criminal law doctrine of necessity as applied in the conjoined twins case (Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961). It determines that the public law principle of proportionality underlies the doctrine, but identifies the preservation of life as the guiding principle behind the Court of Appeal's use of necessity in Re A. The article is critical of this elevation of the preservation of life under the doctrine of necessity and argues for an alternative conception of necessity based upon fundamental constitutional principles such as human rights and democracy. The principle of democracy has particular pertinence to the issue of necessity because it may be endangered by this common law justificatory defence. This conflict between democracy and necessity, it is argued, further supports the need for the constitutional value of democracy to play a key role in any application of necessity in future cases.

Sanctity of life--are some lives more sacred than others?

Court decisions concerning the life and death of patients become more and more frequent in the context of medical practice. One of the most controversial decisions in this area in recent years has been the decision of the Court of Appeal in Re A (Conjoined Twins: Medical Treatment), authorising the separation of conjoined twins. This paper will argue that the decision was flawed both on legal and moral grounds and that its potential implications for future cases are more far-reaching than the judgment itself suggests.

Necessity, private defence and the killing of Mary

This article examines the reasons used by the Court of Appeal in Re A (Children) to authorise and justify an operation which would inevitably kill the weaker of a pair of conjoined twins in order to offer the stronger twin a good chance of a long and happy life. The crux of the judgment was that a utilitarian theory of necessity could justify this operation. This article seeks to define the criminal law defences at issue in the case and to argue that utilitarian necessity is such a dangerous doctrine that it should never be employed if there is any other defence which can be made to serve the same purpose--as there was in the present case.

Resolving the unresolvable: the case of the conjoined twins

IN Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All E.R. 961 the Court of Appeal faced the impossible dilemma of having to decide whether to authorise a complex operation to separate Jodie and Mary, ischiopagus conjoined twins (joined at the pelvis). The condition of the babies was extremely rare, it being estimated that only about once in 100,000 births will monozygotic twins fail to separate completely. Even then, ischiopagus twins account for only about six per cent. of the total instances of conjoined twins. Another very rare peculiarity of the case was the certainty that the operation, if sanctioned, would quickly and inevitably bring about the death of the weaker twin, Mary. This was because the twins shared a common aorta. Mary’s own heart and lungs were severely deficient and incapable of oxygenating and pumping blood through her body. Her life was thus sustained only by the common artery and separation would necessarily involve clamping and severing this. It was equally clear that the effect of failing to attempt the separation would be the inevitable death of both twins within three to six months. The cause of death would be heart failure since Jodie’s heart would sooner or later fail. The parents, devout Roman Catholics, opposed the operation, believing that in God’s eyes the twins were equal and that one could not morally be sacrificed to save the other. The hospital took a different view. It believed that a successful operation could be performed which could give the stronger twin, Jodie, a reasonable prospect of a worthwhile life.