Twenty-one years ago, the birth of conjoined twins presented a legal and moral dilemma for the court of appeal that the judges involved describe as their most difficult case ever. Gracie and Rosie Attard, known as Jodie and Mary respectively during the legal proceedings, were joined at the abdomen. The medical evidence suggested that if they were separated, Rosie would die almost at once, but Gracie would have a 94% chance of survival. If they were not separated, they would both almost certainly die within six months.
The girls’ parents were devout Roman Catholics and believed that nature should be allowed to take its course, stating: “We have faith in God and we are quite happy for God’s will to decide what happens to our two young daughters.”
The dilemma for the court was whether, despite their parents’ wishes, it was lawful to allow the surgery with the purpose of saving Gracie’s life, when it would result in Rosie’s death – which could amount to murder. Alan Ward, who gave the lead judgment, says the case was the “most difficult decision I had to make in my 24 years on the bench”.
It involved issues of medical, family and criminal law. First, looking at the right of the doctors to apply for permission to treat a child in opposition to the parental wish.
On the family point, Ward says, it involved considering “the weight to be given to the parental objection, especially where it was justified and supported by religious belief”, and balancing that with the conflicting welfare considerations of the twins.
And on the criminal front, he says, they had to look at the “mens rea” – or the intention with which the act was done.
Under the Children Act 1989, which places the welfare of the child as the paramount consideration, the court of appeal was satisfied that the parents’ wishes should not prevail and that it was entitled to put the welfare interests of the viable child over the non-viable sister.
The more difficult issue, as the late Henry Brooke notes in his blog on the case, concerned the lawfulness of the surgery, which would have “inevitably involved the performance of positive acts which would cause Mary’s death”.
The three judges agreed that the surgeons’ acts in severing the girls’ common aorta, would not constitute murder, but each with slightly different reasoning.
Ward invoked the concept of self-defence, holding that it would be lawful for the doctors to remove the threat of the fatal harm presented to her by her sister.
He said: “Mary may have a right to life, but she has little right to be alive. She is alive because and only because, to put it bluntly, but nonetheless accurately, she sucks the lifeblood of Jodie. She will survive only so long as Jodie survives. Mary’s parasitic living will be the cause of Jodie’s ceasing to live. If Jodie could speak, she would surely protest, ‘Stop it, Mary, you’re killing me.’”
Brooke based his decision on the doctrine of necessity, distinguishing the unusual and rare facts of the case from the preceding line of English common law cases, which said necessity could not be a defence to murder.
He said: “Mary is, sadly, self-designated for a very early death. Nobody can extend her life beyond a very short span. Because her heart, brain and lungs are for all practical purposes useless, nobody would have even tried to extend her life artificially if she had not, fortuitously, been deriving oxygenated blood from her sister’s bloodstream.”
Lord Justice Robert Walker focused on the intention of the surgeons, concluding that while Rosie’s death was the foreseeable and inevitable consequence of the operation, it was not the purpose. The purpose, he reasoned, was to save Gracie’s life and that her twin would die because her body was not and never had been viable on its own.
At the end of the 20-hour operation to separate the twins, Gracie survived, and, as expected, Rosie died.
Katherine Gieve, the solicitor at the law firm Bindmans who acted for Gracie, says: “My perception was that, while the parents couldn’t themselves have made a decision to kill one of their daughters, they were content for the court to make the decision.”
This is an opinion that seems to be borne out by the fact that the parents did not appeal to the House of Lords, which was then the highest court in England and Wales.
Brooke’s blog also notes a report of the girls’ mother, who stated: “‘We were upset that we lost the case because we always thought we should have the right to say what was best for our children and that the taking of life was wrong.
“The decision was taken out of our hands in the end, but we are happy that the decision to separate was taken by the judges. It meant we didn’t say ‘Yes: kill Mary to save Jodie.’
“There would be great guilt if we had. I do not know how any parent could decide to end the life of one of their babies.”
