-
+ 2(,1 1/,1(Citation: 22 Legal Stud. 377 2002
Content downloaded/printed from HeinOnline
(http://heinonline.org)Wed Oct 29 10:16:44 2014
-- Your use of this HeinOnline PDF indicates your acceptance of
HeinOnline's Terms and Conditions of the license agreement
available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR
text.
-- To obtain permission to use this article beyond the scope of
your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=0261-3875
-
Sanctity of life - are some lives moresacred than others?
Sabine Michalowski*Department of Law, University of Essex
Court decisions concerning the life and death of patients become
more andmore frequent in the context of medical practice. One of
the most controversialdecisions in this area in recent years has
been the decision of the Court ofAppeal in Re A (Conjoined Twins:
Medical Treatment),I authorising theseparation of conjoined twins.
This paper will argue that the decision wasflawed both on legal and
moral grounds and that its potential implications forfuture cases
are more far-reaching than the judgment itself suggests.
1 INTRODUCTION
In the medical context, courts sometimes have to make life and
death decisions.Given the importance attached to a person's life
and the irreversibility of mostof these decisions, these cases
raise complex legal and ethical issues, requiringa balancing of the
principle of the sanctity of life with other interests. Thevery
fact that in those cases a balancing needs to take place
demonstrates thatthe principle of the sanctity of life, which
English courts have consistentlydeclared to be one of the highest
principles of English law,2 is far from beingan absolute
principle.3 Instead, the principle is usually understood to
postulatethe prohibition of an intentional taking of human life,
but it does notrequire the preservation of human life at all
costs.' In some areas the law isnow well established, though not
necessarily universally accepted. No onecan lawfully end the life
of a competent adult with a terminal illness througha positive act,
or assist him or her with bringing about their death, even if
theperson begs for such help.' Thus, as far as active euthanasia
and assisted
* I would like to thank Jurgen Wellner for contributing many
ideas to this paper and forhelping me clarify my thoughts in the
course of many discussions. I would also like tothank Steve
Anderman, Will Cartwright, Tom Comford, Janet Dine, Jim Gobert,
CarolynHamilton, Sheldon Leader, Tom Sorrell and two anonymous
reviewers for their commentson a previous draft of this paper.1.
[2001] 1 FLR 1.2. See eg R v Howe [1987] AC 417 at 439 per Lord
Griffith.3. AiredaleNHS Trust v Bland [1993] 1All ER 821 at
865-866, HL perLord Goff; Re J(A Minor) (Wardship: Medical
Treatment) [1991] Fam 33 at 46 per Lord Donaldson MR,and at 51-52
per Balcombe L.4. See eg J Keown 'Restoring moral and intellectual
shape to the law after Bland' (1997)113 LQR 482 at 484.5. R
(Pretty) vDPP [2001] 3 WLR 1598 at 1624, HL per Lord
Steyn;AiredaleNHS TrustvBland [1993] 1 All ER 821 at 867, HLperLord
Goff;R v Cox(1992) 12 BMLR 38 at41(Winchester CC) per Ognall J.
-
378 Legal Studies
suicide are concerned, the law has struck the balance between
the autonomyof the individual and their interests in being free
from pain and suffering, onthe one hand, and the principle of the
sanctity of life, on the other, in favourof the latter. However, a
competent patient has the right to refuse life-savingtreatment, 6
so that in this context the conflict between the sanctity of life
andpatient autonomy has been resolved in favour of autonomy.7
Medical treatmentof incompetent patients can lawfully be
discontinued if it is no longer in thepatient's best interests, for
example, where it is regarded as futile becausethe patient is in, a
permanent vegetative state (PVS),8 or where treatment isoverly
burdensome.9 All these cases have in common that the decision
thatneeds to be made only affects one individual. The case of the
conjoined twinsthat had to be decided by the Court of Appeal,' on
the other hand, requireda decision that directly affected the lives
of two patients, and it therefore raisedeven more complicated legal
and moral issues.
Since the case has been widely publicised, it seems unnecessary
to givean extensive summary of the facts. Suffice it to say that
twins joined at thelower abdomen and sharing a common artery were
born to two residents ofGozo in a hospital in Manchester. The lungs
and heart of one of the twins,Mary, were too deficient to supply
her blood with oxygen, and if she hadbeen born a singleton she
would not have been viable. Through the commonartery her sister,
Jodie, supplied her with oxygenated blood. The medicalprognosis was
that without an operation to separate the twins, Jodie's heartwould
eventually fail, probably within three to six months, so that
bothchildren would die as a consequence. If, on the other hand, the
twins wereseparated, Mary would die during the operation, as soon
as the commonartery was clamped off, while Jodie had a good chance
to survive and, withseveral operations, could probably enjoy what
Ward LJ called 'a life thatwill be worthwhile'. The parents, devout
Roman Catholics, refused to givetheir consent to the operation, as
saving one child by allowing the otherchild to be killed violated
their religious beliefs. They also worried aboutJodie's quality of
life, given that in Gozo the necessary medical facilities tocope
with her disabilities were not easily available. The hospital
sought anauthorisation from the High Court that the operation could
lawfully beperformed, which was granted by Johnson J. The Court of
Appeal had todecide an appeal against this decision.
The case did not fit neatly into existing legal categories. As
the court hadto make a life-and-death decision affecting two
patients whose interestsseemed to be diametrically opposed, the
normal principles of family law andmedical law, according to which
a treatment decision on behalf of an
6. Re T (Adult: Refusal of Treatment) [1992] Fam 95, CA; Re MB
(An Adult: MedicalTreatment) [1997] 2 FCR 541; St George's
Healthcare NHS Trust v S [ 199813 All ER 673, CA;B v NHS Hospital
Trust [2002] 2 All ER 443.7. It has been argued that there is no
conflict in such cases, as the principle of the sanctityof life
does not require the preservation of the competent person's life
against his or herwishes; see Keown, n 4 above, at 495.8. See
egAiredaleNHS Trust vBland [1993] 1 All ER 821, HL.9. See eg Re J
(A Minor) (Wardship: Medical Treatment) [1991] Fan 33; Re C
(MedicalTreatment) [1998] 1 FLR 384; NHS Trust v D [2000] 2 FCR
577.10. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR
1.
-
Sanctity of life - are some lives more sacred than others?
379
incompetent child must be based on the child's best interests,"
did not resolvethe dilemma. The problem was further complicated by
the fact that anoperation would end Mary's life, thus potentially
constituting murder bycommission, while a failure to save Jodie's
life by the means of an operationmight amount to murder by
omission. Accordingly, the principles of familylaw, medical law and
criminal law seemed to create insoluble problems, inthat the best
interests of the two children were irreconcilable, and in that
thephysicians risked incurring criminal liability whatever they did
or omitted todo. Given the law's seeming inability to provide clear
legal principlesaccording to which to resolve the dilemma, it might
have seemed attractiveto decide the case based on generally
accepted moral principles instead.However, the widespread
controversy about the right course to be taken showsthat such
generally accepted moral principles do not exist." Indeed, as
RaananGillon has put it:
'[T]here are strong moral reasons for not killing one baby to
save the othereven at the cost of the tragedy that both will die;
and there are strong moralreasons for saving one baby's life rather
than allowing both to die, even atthe cost of the tragedy that one
will be deliberately killed." 3
Looking at the Court of Appeal's decision, it seems as if the
court was drivenby the desire to save at least one life by an
operation instead of losing two throughinaction, and tried to
provide a legal and moral justification for this result. Giventhe
ostensibly irresolvable legal and moral dilemma, this might seem
like anacceptable outcome which was in line with the intuitive
reaction of many.However, it will be argued in this paper that
moral and legal principles clearlypointed towards the opposite
outcome.
With this unusual factual situation, it seems at first glance as
if the impactof the decision in Re A will be very limited.'4
Indeed, Ward LJ explicitly limitedthe authority of the decision to
the case in which:
'[I]t must be impossible to preserve the life of X without
bringing about thedeath of Y, that Y by his or her very continued
existence will inevitably bringabout the death of X within a short
period of time, and that X is capable ofliving an independent life
but Y is incapable under any circumstances(including all forms of
medical intervention) of viable independentexistence." 5
However, it can be learned from other cases in which the courts
haveexpressed similar reservations as to the authoritative effect
of their decision thatlegal principles established and ethical
considerations relied on in a specificcontext will inevitably be
used in future cases which raise comparable problems,regardless of
the difference in the factual situations. It is therefore highly
likely
11. See eg Re T(A Minor) (Wardship: Medical Treatment) [1997] 1
WLR 242, CA.12. Brooke U expressly admitted this at 98.13. R Gillon
'Imposed separation of conjoined twins- moral hubris by the English
courts?'(2001) 27 JME 3.14. Note, however, that an Australian court
deciding on the lawfulness of a separation ofconjoined twins which
would cause the death of one of them, relied heavily on the Courtof
Appeal's decision in Re A: see Queensland v Nolan [2001] QSC
174.15. ReA (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
62.
-
380 Legal Studies
that the decision in Re A, particularly as regards the court's
approach to thenecessity defence 6 and to the principle of the
sanctity of life, will be influentialin the context of
life-and-death decisions both in the context of medical lawand
criminal law.'7
2 DETERMINING AND BALANCING THE CHILDREN'S BEST INTERESTS
It is well established that treatment decisions on behalf of
children must be madein the child's best interests.'I One of the
special problems when dealing withconjoined twins is that the
medical treatment decision in question affects twochild patients,
not just one. Given that the operation would affect the two
childrenvery differently, the only sensible solution was to
determine the best interestsof each child separately.
2.1 Mary's best interestsRobert Walker U was of the opinion that
the operation could be performed inMary's best interests as it was
in her best interests to have her bodily integrityrestored. 9 The
restoration of physical integrity and respect for humandignity are,
in principle, laudable goals. However, it seems somewhat romanticto
justify an extreme intrusion on bodily integrity, in this case the
creation oflarge wounds by cutting through parts of someone's body
which would resultin death, by reference to human dignity and
physical integrity. As Mary hadnever possessed an independent
existence, she never had an independentphysical integrity that
could have been restored. The consequence of RobertWalker's view
would be to regard the 'physical integrity' of this baby as
moreimportant than her life.20 This is a novel and alarming
approach which seemsto be based on the perception that a person
suffering from a particulardisability, in this case the lack of an
independent physical existence, is betteroff dead, a view that has
so far been rejected by English courts as constitutingan inroad on
the sanctity of human life which would be contrary to publicpolicy.
21
Interestingly, Robert Walker discussed Mary's best interests
based on hisunderstanding of Bland22 and came to the conclusion
that 'continued life,whether long or short, would hold nothing for
Mary except possible painand discomfort, if indeed she can feel
anything at all'. 2 To bring Bland and
16. On this point see also J Rogers 'Necessity, private defence
and the killing of Mary'(2001) CrimLR 515 at 517.17. In his
commentary on Re A (2001) CrimLR 401, JCS equally argues that
regardlessof the proclaimed unique nature of the case, it will
constitute an important precedent for thecriminal law.18. Re T (A
Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242, CA.19. ReA
(Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 111 and
118-119.20. See also A Grubb 'Conjoined twins: Re A down under'
(2002) 10 MLR 100 at 101.21. McKay and anor v EssexArea Health
Authority and anor [1982] 2 All ER 771 at 781per Stephenson U.22.
Airedale NHS Trust v Bland [1993] 1 All ER 821.23. Re A (Conjoined
Twins: Medical Treatment) [200111 FLR I at 119.
-
Sanctity of life - are some lives more sacred than others?
381
other cases of withdrawal or withholding of medical treatment
into theassessment of Mary's best interests clouds the issue. In
Bland, the bestinterests analysis was performed in the context of a
decision of whether ornot active steps to continue life-prolonging
treatment were required in theinterests of the patient. As the
House of Lords came to the conclusion thatfor a patient in PVS this
was not the case, life-sustaining treatment couldlawfully be
withdrawn. In Mary's case, the question was whether or not
anoperation, the only effect of which on her was that it would end
her life, wasin her best interests. This is not a question of
life-prolonging, but oflife-ending treatment.
Robert Walker's analysis of Mary's best interests in Bland terms
isdangerous, as it extends the holding in Bland to cases in which a
patient'slife is terminated by positive acts, suggesting that it
would be lawful activelyto kill patients in their best interests if
their continued existence is notregarded as worthwhile. No case law
exists to support this approach. Allexisting cases in which the
courts have applied the best interests test in orderto justify a
course of action leading to an incompetent patient's death, suchas
the neonate cases24 and the PVS cases25 referred to the question of
whetheror not treatment should be continued.26 Indeed, Lord Goff
has stressed inBland that:
'The question is not whether it is in the best interests of the
patient that heshould die. The question is whether it is in the
best interests of the patientthat his life should be prolonged by
the continuance of this form of medicaltreatment or care.' 27
Consequently, the question of whether or not a continued
existence is in Mary'sbest interests is of no relevance.
Fortunately, Robert Walker's line of reasoning was not accepted
by the otherLord Justices. Instead, Ward LJ came to the conclusion
that:
'What is proposed should be done and what the court is being
asked tosanction demands that the question be framed in this way:
is it in Mary'sbest interests that an operation be performed to
separate her from Jodiewhen the certain consequence of that
operation is that she will die? Thereis only one answer to that
question. It is: no, that is not in her bestinterests.' 28
2.2 Jodie's best interestsWhen determining Jodie's best
interests, Ward LJ compared the risks inherentin the operation and
the predicted quality of life, including possibledisabilities, to a
certain death without the operation and, unsurprisingly, he
24. See eg Re J (A Minor) (Wardship: Medical Treatment) [1991 ]
Fam 33; Re C (MedicalTreatment) [1998] 1 FLR 384; NHS Trust v D
[2000] 2 FCR 577.25. See eg Airedale NHS Trust v Bland [1993] 1 All
ER 821.26. This approach has recently been confirmed in R (Pretty)
v DPP [2001] 3 WLR 1598at 1606, HL per Lord Bingham, and at 1624
per Lord Steyn.27. Airedale NHS Trust v Bland [1993] 1 All ER 821
at 869.28. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR I
at 46.
-
382 Legal Studies
came to the conclusion that the operation was in her best
interests .29 This resultwas reached despite the fact that the
parents had feared that they might not beable to meet her special
needs, given the lack of medical facilities at Gozoand the limits
of their own financial resources. It is submitted that this is
theright approach. If, for example, Mary had died and the question
of anemergency separation operation to save Jodie's life had
arisen, and if theparents had refused to consent to that operation
based on those grounds,the court would have been right to override
the parents' wishes on the basisthat it should never be said that
it is not in the best interests of a child to survivebecause
practicalities make the administration of the life-saving
treatmentinconvenient, or because the parents do not believe in the
treatment proposedand will therefore not provide the care that is
essential for a success of thatmedical treatment. 30
The court's analysis of Jodie's best interests was somewhat
superficial, giventhat it concentrated entirely on the medical
prognosis of her future quality oflife, without, for example,
taking into account the potential psychological effectsof the
separation from and the killing of her sister. However, even if
these factorshad been taken into account, the balance would still
have come down in favourof saving her life, as it can only in very
exceptional situations be said thatlife-saving treatment is not in
the best interests of a child.3' In Jodie's case, thepsychological
factors pointing against the life-saving operation are
hypotheticaland cannot be clearly defined. They cannot, therefore,
outweigh the very strongpresumption in favour of life-saving
treatment.
2.3 Jodie's interests versus Mary'sTo find a way to resolve the
incompatibility of the best interests of the twochildren who would
be affected by the operation, Ward U referred to thecase of
Birmingham City Council v H (A Minor).32 In that case, the
questionof contact between a 16-year-old mother and her baby had to
be decided. Asboth parties concerned were minors and their
interests were perceived to be inconflict with each other, the
Court of Appeal took the stance that theirinterests needed to be
balanced against each other.33 From this, Ward LJinferred that the
solution to the dilemma in the case of the twins could befound by
balancing the best interests of the two children and by then
actingin accordance with the interests of the child whose interests
prevailed onbalance.3 4 Ward LJ formulated his task of balancing
the conflicting bestinterests of Jodie and Mary as follows:
29. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
37-38.30. See S Michalowski 'Is it in the best interests of a child
to have a life-saving livertransplantation?: Re T(Wardship: Medical
Treatment)' (1997) 9 CFLQ 179 at 189.31. See eg Re J (A Minor)
(Wardship: Medical Treatment) [1991] Fam 33 at 46 perLord Donaldson
MR; Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR1421
at 1424 per Templeman L.32. [1994] 2 AC 212, HL; [1993] 1 FLR 883,
CA.33. The House of Lords, on the other hand, decided that the
interests of the baby wereparamount in that case, as the
application had been made on her behalf.34. This approach was
welcomed by A Bainham 'Resolving the unresolvable: the case ofthe
conjoined twins' (2001) 60 CI 49 at 52.
-
Sanctity of life - are some lives more sacred than others?
383
'Given the conflict of duty, I can see no other way of dealing
with it than bychoosing the lesser of the two evils and so finding
the least detrimentalalternative. A balance has to be struck
somehow and I cannot flinch fromundertaking that evaluation,
horrendously difficult though it is.'35
The concept of a conflict of duties and of the choice of the
lesser of two evils areboth borrowed from criminal law. Ward LJ
nevertheless thought that prior to adiscussion of the criminal law
issues raised by the case, it needed to be decidedwhether, on
balance, Jodie's interests outweighed those of Mary. If that was
thecase, then according to Ward LJ the operation should be
authorised if it couldlawfully be performed, that is, if the
physicians would not thereby commit acriminal offence without being
able to rely on a defence.
It is submitted that a balancing of the mutually exclusive best
interests ofthe twins was neither useful nor necessary to resolve
the conflict. In the contextof medical treatment decisions, the
best interests test performs the function ofproviding a
justification for medical treatment which would otherwiseconstitute
the crime and tort of battery.36 Thus, unlike in the case
ofBirmingham City Council v H (A Minor), in this case the best
interests testserves the purpose of justifying a violation of
Mary's and Jodie's physicalintegrity and, even more importantly, of
Mary's right to life. It wouldcontravene established medical law
principles to suggest that an invasion ofthe body of one patient
could be justified in the best interests of another,37which would
be the consequence of Ward LJ's approach. Given that it hasalready
been established that the operation would be in Jodie's best
interests,so that a justification for her operation has already
been found, the problemthat needs to be resolved is that the
operation is not in Mary's best interests.It needs to be examined
at this stage whether or not justifications other thanher best
interests could make it lawful for the physicians to end her life
in thecourse of the operation. This is where the criminal law comes
in. It needs to beestablished whether, according to criminal law
principles, an operationbringing about Mary's death could be
justified.
A comparison with a hypothetical case of conjoined twins who are
in theirtwenties and who are both competent further demonstrates
that it is notnecessary to balance the best interests of the two
patients concerned in orderto decide whether or not the operation
can and should be performed. Indeed,even if both twins had
consented to the operation, the consent of the twinwho was going to
die during the operation would not have been valid, as noone can
validly consent to being killed.38 In such a case, if a
separationbecame necessary to ensure the survival of one of the
twins, and if the twinwho had a chance to survive consented to the
operation while the twin whowould die during the operation refused
to give her consent, the courts couldnot resolve the conflict by
balancing the best interests of the patients, as
35. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
49.36. Gillick v West Norfolk and Wisbech Area Health Authority and
anor [1985] 3 All ER 402at 407 per Lord Fraser.37. See eg Re Y
(Mental Incapacity: Bone Marrow Transplant) [ 1996] 2 FLR 787 at
781per Connell J.38. Airedale NHS Trust v Bland [1993] 1 All ER 821
at 890 per Lord Mustill; R (Pretty)v DPP [2001] 3 WLR 1598 at
1603-1604, HL per Lord Bingham.
-
384 Legal Studies
the best interests test is not applicable to competent adult
patients. Thequestion of whether or not an operation could lawfully
be performed wouldthen turn on the existence of a justification
other than consent. It issubmitted that the same approach should be
adopted in the case of the twominor twins who cannot give valid
consent and on whose behalf the parentsor the courts can consent to
medical interventions. Thus, instead of balancingthe best interests
of the children against each other, the question of thelawfulness
of the operation needs to be discussed in the context of
possiblecriminal law defences.
This approach would avoid the difficulties and dangers of Ward
LJ'sarguments when he balanced the children's best interests by
comparing theworthwhileness of the treatment for each of the twins,
stating that:
'When considering the worthwhileness of the treatment, it is
legitimate tohave regard to the actual condition of each twin and
hence the actual balancesheet of advantage and disadvantage which
flows from the performance orthe non-performance of the proposed
treatment. Here it is legitimate ... tobear in mind the actual
quality of life each child enjoys and may be able toenjoy. In
summary, the operation will give Jodie the prospects of a
normalexpectation of relatively normal life. The operation will
shorten Mary's lifebut she remains doomed for death.'39
The operation only provided treatment for Jodie, while causing
Mary'sdeath, so that it is pointless to consider the worthwhileness
of this 'treatment'for Mary. Given that quality of life
considerations are irrelevant in thecontext of the active killing
of a patient and that the only effect of theoperation on Mary was
that it would end her life, it is misleading todistinguish between
the worthwhileness of the treatment and theworthwhileness of Mary's
life.
3 CRIMINAL LAW ISSUES
In the context of the analysis of a potential criminal liability
of the physicians,the court discussed the problems of double
effect, and the applicability of thedefences of necessity and
self-defence.
3.1 Double effectAll three Lord Justices agreed that Mary's
death during the operation wouldbe brought about by a positive act,
not by an omission. In performing theoperation the physicians would
intentionally end Mary's life, given that it issufficient for
oblique intent that the defendant foresees the consequence ofhis or
her act with virtual certainty, and it is irrelevant whether or not
theconsequence is desired or unwanted.4" What has given rise to
somecontroversy, however, was whether or not the doctrine of double
effect could
39. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
53-54.40. R v Nedrick [1986] 3 All ER 1 at 3-4 per Lord Lane CJ; R
v Woollin [1998] 3 WLR 382at 391 per Lord Steyn.
-
Sanctity of life - are some lives more sacred than others?
385
be applied.4 According to that doctrine, if an act has more than
oneconsequence, an act causing a bad consequence is permissible if
the bad effectis no more than an incidental side-effect of bringing
about a beneficialconsequence; if the act was done with the sole
purpose of bringing about thepositive consequence; if the bad
effect is not a necessary means for achievingthe good effect; and
if the good effect outweighs the bad effect. 2
Robert Walker LJ was the only Lord Justice to rely on the
doctrine ofdouble effect. He argued that the doctrine could be
applied because theoperation would be beneficial to Mary, so that
the good and the badconsequences of the operation would affect the
same patient.43 This is a veryquestionable approach, as it is based
on the assessment that the good effectof restoring Mary's physical
integrity outweighed the bad effect, her death.More importantly, it
condones the achievement of the good effect, therestoration of
Mary's bodily integrity, through the bad effect, ending herlife.
The active and intentional ending of a patient's life for the
purpose ofachieving a good result, for example, where this is the
only possibility torelieve a patient's pain, cannot be covered by
the doctrine of double effect,"because it can then not be argued
that the acceleration of death is no morethan an incidental
side-effect of bringing about the good consequence. Anextension of
the doctrine of double effect to such situations would, in
fact,circumvent the prohibition of active euthanasia, as a patient
could then beactively and intentionally killed whenever it was felt
that death wouldbe beneficial to the patient, for example, because
it would end the patient'ssuffering."
As double effect consequently can not be used by concentrating
solelyon the effects of the act on Mary, it remains to be discussed
whether thedoctrine can be applied to a situation in which the
person affected by thebad effect is not the same as the person
benefiting from the good effect. Inlaw, the doctrine of double
effect has only been used in cases in which theadministration of
painkillers relieves the patient's pain and at the same
timeincidentally shortens the patient's life.46 In these cases, the
positive and thenegative consequence of the act affect the same
person. Both Ward LJ47 andBrooke LJ48 rejected extending the
doctrine to the situation in which thegood and the bad effect of
the same act affected two different individuals.
41. For a discussion of the doctrine of double effect in the
context of the separation ofconjoined twins see S Sheldon and S
Wilkinson 'Conjoined twins: the legality and ethicsof sacrifice'
(1997) 5 MLR 149 at 158-165.42. T Beauchamp and J Childress
Principles of Biomedical Ethics (Oxford: OxfordUniversity Press,
5th edn, 2001) p 129; D Price 'Euthanasia, pain relief and double
effect'(1997) 13 LS 323 at 325.43. Re A (Conjoined Twins: Medical
Treatment) [2001] 1 FLR 1 at 111 and 118.44. SeeReJ [1991] Fam 33
at 46 per Lord Donaldson MR; Rv Cox(1992) 12BMLR 38at 41
(Winchester CC) per Ognall J.45. Rogers, n 16 above, at 519.46. See
eg Airedale NHS Trust v Bland [1993] 1 All ER 821 at 868 per Lord
Goff;Re J [1991] Fam 33 at 46 per Lord Donaldson MR; R v Cox (1992)
12 BMLR 38 at 41(Winchester CC) per Ognall J.47. Re A (Conjoined
Twins: Medical Treatment) [200111 FLR 1 at 56.48. Re A (Conjoined
Twins: Medical Treatment) [2001] 1 FLR 1 at 74-76.
-
386 Legal Studies
Given that the doctrine is moral rather than legal in its
origins, and has beendeveloped, for example, to resolve conflicts
between the mother and the fetusin the context of abortions, 9 and
to provide a moral justification for acts ofself-defence, 0 it is
at least debatable that its legal application should beextended to
cases affecting different individuals. However, good
reasonsmilitate against this view. First, even the limited use of
the doctrine by thecourts is highly controversial" as it distorts
the criminal law's definition ofintention, which usually
encompasses all foreseen effects, whether or notthey have been
desired. 2 Secondly, criminal law resolves conflicts betweenthe
interests of different persons through the principles of legal
defences,providing justifications or excuses to criminal acts that
infringe on the rightsof third parties according to specified legal
criteria. Thus, the AbortionAct 1967 provides for defences to the
offences under ss 58 and 59 of theOffences of the Person Act 1861
(procuring a miscarriage) and s 1(2) ofthe Infant Life
(Preservation) Act 1929 (child destruction). The principlesof
self-defence specifically regulate the situation in which an
individualviolates the rights of the aggressor in order to defend
him or herself or athird party. The legal defences provide a more
specific and more appropriateframework for a resolution of such
conflicts than the principle of doubleeffect, as they take account
of the fact that, in principle, all acts that areprohibited by the
criminal law because they violate the rights of others areunlawful
and therefore bad. On the other hand, if good reasons allow for
adifferent assessment, the justificatory effect of a defence
applies even wherethe bad effect was desired. In the case of Jodie
and Mary, the good effectwould be the saving of a life while the
bad effect would be the taking of alife. Given that double effect
requires that the good effect outweighs thebad effect, the value of
the two lives in question would have to be compared.The law deals
with this question of proportionality in the context of
thenecessity defence and of self-defence.
3.2 NecessityIf double effect cannot render the of killing Mary
lawful, another possibilityto come to the conclusion that the
operation can be lawfully performed wouldconsist in a successful
invocation of the necessity defence. Towards the endof his speech,
Brooke LJ stated that English law knows three requirements forthe
application of the doctrine of necessity: (i) the act is needed to
avoidinevitable and irreparable evil; (ii) no more should be done
than is reasonably
49. See eg P Foot Virtues and Vices (Berkeley and Los Angeles:
University of CaliforniaPress, 1978) pp 19-3 1; L Geddes 'On the
intrinsic wrongness of killing innocent people'(1973) 33 Analysis
93; G Williams The Sanctity of Life and the Criminal Law
(London:Faber and Faber, 1958) pp 177-189.50. Asserting that in
self-defence a person who injures a third party in order to avert a
riskof injury from him or herself merely intends the good effect
and only incidentally causesthe bad effect; see eg J Boyle 'Toward
understanding the principle of double effect' (1980)90 Ethics 527
at 529, referring to Saint Thomas Aquinas.51. See the discussion by
Price, n 42 above; see also I Kennedy and A Grubb Medical
Law(London: Butterworths, 3rd edn, 2000) p 2 113.52. R v Woollin
[1998] 3 WLR 382 at 391 per Lord Steyn.
-
Sanctity of life - are some lives more sacred than others?
387
necessary for the purpose to be achieved; and (iii) the evil
inflicted must notbe disproportionate to the evil avoided.5 3
The first requirement is easily met, as the operation which
would kill Marywas needed to avoid the irreparable and otherwise
inevitable evil of Jodie'sdeath. There was no other possibility of
saving Jodie's life, so that the operationwas also reasonably
necessary to achieve the purpose of preventing Jodie'sdeath. It is
the last requirement, that of the proportionality between the
evilinflicted and the evil avoided, which caused the main
problem.
(i) Necessity and murderAs lives are usually regarded as being
of equal value, it is not at all obvious thatnecessity can be used
as a defence in cases of murder where an innocent life is takenin
order to save another life. One of the leading cases which analysed
this problemis that of R v Dudley and Stephens,' the case of the
shipwreck of the Mignonettewhere, after several days without food
and water, two members of the crew had killedand eaten the young
cabin boy. In that case, Lord Coleridge CJ argued that:
'It is not needful to point out the awful danger of admitting
the principle whichhas been contended for. Who is to be the judge
of this sort of necessity? By whatmeasure is the comparative value
of lives to be measured? It is plain that theprinciple leaves to
him who is to profit by it to determine the necessity whichwill
justify him in deliberately taking another's life to save his own.
In this casethe weakest, the youngest, the most unresisting was
chosen. Was it more necessaryto kill him than any of the grown men?
The answer must be no. 55
It has been discussed, controversially, whether R v Dudley and
Stephens stoodfor a general rejection of the application of the
necessity defence to charges ofmurder,56 or whether its authority
was limited to cases in which a choice betweenseveral lives, each
of which could have been saved at the expense of the other,needed
to be made and was not performed according to a fair procedureY.5
TheHouse of Lord's decision in R v Howel8 might be regarded as
giving R v Dudleyand Stephens a broad interpretation, excluding
necessity as a defence in allcases of murder. According to Lord
Griffiths:
'The reasoning that underlies that decision is the same as that
which deniesduress as a defence to murder. It is based upon the
special sanctity that thelaw attaches to human life and which
denies to a man the right to take aninnocent life even at the price
of his own or another's life.'59
Equally, Lord Mackay stressed that:'The justification for
allowing a defence of duress to a charge of murderis that a
defendant should be excused who killed as the only way of
53. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
99.54. (1884) 14 QBD 273.55. (1884) 14 QBD 273 at 287-288.56.
Rogers, n 16 above, at 518; Price, n 42 above, at 338; Sheldon and
Wilkinson, n 41above, at 169.57. Smith and Hogan Criminal Law
(London: Butterworths, 9th edn, 1999) p 251.58. [1987] AC 417.59.
[1987] AC 417 at 439.
-
388 Legal Studies
avoiding death himself or preventing the death of some close
relationsuch as his own well-loved child. This essentially was the
dilemma whichDudley and Stephens faced, and in denying their
defence the court refusedto allow this consideration to be used in
a defence to murder. If that refusalwas right in the case of Dudley
and Stephens it cannot be wrong in thepresent case.' 60
These statements support the view that in R v Howe, the House of
Lordsinterpreted R v Dudley and Stephens as standing for the
principle that necessityis, in general, excluded as a defence in
cases of murder. This approach was mainlybased on the desirability
to preserve the principle of the sanctity of human life.In that
respect, Lord Griffiths stressed that he 'would do nothing to
undermineit, be it ever so slight'. 6' Besides, given the equal
value of human lives, 'in sucha case a man cannot claim that he is
choosing the lesser of two evils. Instead heis embracing the
cognate but morally disreputable principle that the end
justifiesthe means' .62 Thus, in the case of an intentional active
killing of an innocentperson in order to save another equally
innocent life the proportionalityrequirement of the necessity
defence is not satisfied, as the evil avoided doesnot outweigh the
evil caused by the act.
(ii) Necessity and the killing of persons who are 'designated
for death'Surprisingly, Brooke U nevertheless suggested that the
decision in R v Howedid not prevent him from applying the necessity
defence, as the House of Lordshad not had in mind a situation in
which the necessity defence had to be appliedto facts comparable to
those of the conjoined twins case.63 He tried to distinguishthe
case mainly on the basis that Mary was 'self-designated for a very
early death.Nobody can extend her life beyond a very short span'.'
Therefore, no choice isnecessary, as the victim is chosen by fate,
rather than by the person performingthe killing. Some support for
this interpretation of R v Howe might be found inLord Mackay's
statement that it was still the law that 'it seemed repugnant
...[to] recognise in any individual in any circumstances, however
extreme, theright to choose that one innocent person should be
killed rather than another' .65Thus, it could be argued that R v
Howe only applies to situations in which achoice between two lives
needs to be made.
However, even if R v Howe were to be interpreted this way, it is
difficultto accept that in the case of Jodie and Mary, no choice
between two livesneeded to be made, as Mary was 'designated for
death'. Mary had an illnessthat could not be cured, but there was
no certainty as to the time of her naturaldeath. At the time of the
proposed operation that would end her life, it waspredicted that
she still had a few months to live. A choice therefore neededto be
made between allowing two lives to be ended naturally after a
shortperiod of time, or ending one life prematurely to give another
person thechance of a longer life. In the context of the
proportionality requirement of
60. [1987] AC 417 at 453.61. [1987] AC 417 at 444.62. [1987] AC
417 at 433 per Lord Hailsham.63. Re A (Conjoined Twins: Medical
Treatment) [2001] 1 FLR 1 at 84.64. Re A (Conjoined Twins: Medical
Treatment) [2001] 1 FLR 1 at 98.65. [1987] AC 417 at 456.
-
Sanctity of life - are some lives more sacred than others?
389
the necessity defence, the fact that Mary was 'designated for
death' can onlybe of relevance if, because of her limited lifespan,
her life was worth lessthan that of her sister, who had the chance
of a longer life. A similar argumentwas discussed in the American
case of Re AC where the appellate courtupheld the first instance
court's decision to authorise a Caesarean sectionon a woman without
her consent, partly on the basis that she was dying ofcancer and
had 'at best, two days left of sedated life ... The child, on
theother hand, had a chance of surviving delivery'.66 Accordingly,
the courtfelt that the dying mother's right of bodily integrity was
outweighed by thechild's interest to survive and by the state
interest in attempting to savethe life of the child. When later
giving a full written decision, the courtchanged its mind and the
majority argued instead that 'it matters not whatthe quality of the
patient's life may be; the right of bodily integrity is
notextinguished simply because someone is ill, or even at death's
door'.67Equally, in the English case of R v Cox, Ognall J stressed
that it matters notwhether death was accelerated by minutes, hours,
days or years.68Consequently, the predicted length of the victim's
life seems to be excludedas a legal consideration in the context of
murder. If this is accepted, thenecessity defence cannot be rescued
on the basis that the operation wouldachieve a net saving of
lives,69 as the immediate effect of the operation wouldbe a net
loss of lives, and this assessment would only change if one were
tocompare the predicted lifespan of the two lives involved.
If the predicted lifespan were used as a criterion to diminish
the value ofan individual's life, the life of an elderly person
would, in principle, be worthless than the life of a younger
person, and the life of a terminally ill personwith a reduced life
expectancy less than that of a healthy person with a longerlife
expectancy. Furthermore, the predicted lifespan does not provide a
clearand convincing criterion for diminishing the value of an
individual life.The course of an illness and the length of human
life cannot be predictedwith any degree of certainty. As it is a
basic feature of human life that it willend, to attach significance
to the fact that someone is 'designated for death'seems to imply
that the prediction of a short lifespan which cannot beprolonged
alters the value of the time that is left to the individual.
However,the predicted length of a person's life does not say
anything about that life'svalue to the individual concerned. If a
person has only a limited lifespanleft, this time could be regarded
as particularly valuable. In the Americancase of Re AC, for
example, the last two days of life might have been preciousto the
patient in order to enable her to say good bye to relatives and
friendsand to die peacefully in their presence, rather than in the
course of, or directlyafter, an operation. In the case of Mary,
this consideration would only beirrelevant if one subscribed to the
view that seriously disabled newborns do
66. [1987] 533 A2d 611 at 616, DC CA.67. [1990] 573 A 2d 1253 at
1247, DC CA per Terry JA.68. (1992) 12 BMLR 38 at 41 (Winchester
CC).69. But see Brooke LJ, who seems to have relied on that
argument, as can be inferredfrom his observations at 87-89; see
also JCS, n 17 above, who argues at 403 that 'thechoice was not
whether Jodie or Mary should die, but whether Jodie and Mary, or
Maryalone, should die'.
-
390 Legal Studies
not have any interests that need to be taken into account.7 It
is highly likelythat the court's decision was to some extent
influenced by suchconsiderations, as it is difficult to see that
its decision would have beensimilarly straightforward had Mary been
a three-year-old child andperceived as having developed her own
personality.
If a person's life receives the protection of the law until the
last second of itsnatural span, even where a competent patient in
excruciating pain begs thephysician to end his or her life,71 it is
difficult to see why the same should notapply to a patient who does
not perceive his or her life as unbearable and whocannot make any
informed choices as to whether or not to live. There is, of
course,a difference between voluntary euthanasia and the case of
the conjoined twins, asonly in the latter is it necessary to
balance the value of two lives against eachother. Could it then be
said that Mary's life, though in principle worthy ofprotection from
intentional killing until it has come to its natural end, was
worthless than Jodie's life, so that, on the balance, the killing
of Mary can be regardedas proportionate in order to save Jodie's
life?72 Or, in more general terms, shouldthe law deviate from the
principle that all lives are of equal value and favour thelife of a
person who may 'enjoy a normal expectancy of life' and 'live a
normal orfairly normal life' 73 over the life of a person who has
only a short expectancy oflife with severe disabilities? It is
submitted that it should not, as this would leadto an erosion of
the principle of the sanctity of life exceeding by far the effects
ofcases such as Bland,74 Re T,75 and Re J.76 In all of the existing
cases in which thesanctity of life has been qualified, this was
done on the basis that medical treatmentcan be discontinued and/or
future treatment withheld if it is no longer regarded tobe in the
best interests of the patient. In so far as these cases involved a
quality oflife judgment, this was performed for the benefit of the
patient concerned,acknowledging the fact that in certain extreme
circumstances, continued medicaltreatment might either cause a
patient more harm than good,77 or be futile andtherefore of no
interest to the patient concerned.78 None of the cases involved
abalancing of the quality of life of two patients, nor did any of
the cases sanctionthe active killing of a patient, either in the
patient's interests or in the interests ofa third party.
If the law were to be changed to permit the assessment that a
limited life withsevere disabilities was, on balance, worth less
than a 'normal' life, this would
70. An overview and critical evaluation of the arguments that
neonates do not possesspersonhood and that infanticide could
therefore be morally justified is provided by R WeirSelective
Treatment of Handicapped Newborns: Moral Dilemmas in Neonatal
Medicine(New York, Oxford: Oxford University Press, 1984) pp
152-159.71. Airedale NHS Trust v Bland [1993] 1 All ER 821 at 867,
HL per Lord Goff.72. In favour of such an approach, see eg C
Elliott 'Murder and necessity following theSiamese twins
litigation' (2001) 65 J Cr L 66 at 75.73. Re A (Conjoined Twins:
Medical Treatment) [2001] 1 FLR 1 at 38 per Ward LJ.74. Airedale
NHS Trust v Bland [1993] 1 All ER 821, HL; for a discussion of the
impactof this decision on the sanctity of life principle, see eg J
Finnis 'Bland: crossing the rubicon?'(1993) 109 LQR 329; Keown, n 4
above.75. Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR
242, CA.76. Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam
33, CA.77. Re J(A Minor) (Wardship: Medical Treatment) [ 1991] Fam
33 at 52 per Balcombe LJ.78. Airedale NHS Trust v Bland [1993] 1
All ER 821 at 870, HL per Lord Goff.
-
Sanctity of life - are some lives more sacred than others?
391
have serious repercussions. 79 Once such an approach were
accepted, it is difficultto see how its impact could be limited to
extreme and rare cases like those ofconjoined twins. Why should a
physician who is faced with two patients, oneof whom is 'designated
for death', while the other could have a normal life ifgiven a
heart transplant, not rely on necessity as a justification for
killing thefirst patient if that was the only possibility to save
the other patient's life?The main differences between that scenario
in which, according to GlanvilleWilliams, even a utilitarian would
reject the application of the necessitydefence,8" and the case of
Jodie and Mary seem to be that the saving of Jodiecan only be
achieved by the same act which would kill Mary, and that withoutthe
intervention, Mary's existence would cause Jodie's premature
death.However, this is not a relevant distinction when determining
proportionality inthe context of the necessity defence. For the
necessity defence to apply, all thatneeds to be shown is that the
evil avoided (Jodie's death) outweighed the evilcaused (Mary's
death). Thus, once the underlying principle has been acceptedand
certain lives, such as Mary's, are no longer regarded as being of
equal valuewith 'normal' lives, the same consideration can easily
be applied to all cases inwhich a patient is 'designated for death'
and in which someone else's life couldbe saved through the active
killing of that patient."1
The concentration camp example introduced by Ward U further
demonstratesthe arbitrariness of the concept that a person is
'designated for death'. Accordingto him:
'[P]arents who are placed on the horns of such a terrible
dilemma simplyhave to choose the lesser of their inevitable loss.
If a family at the gates ofa concentration camp were told they
might free one of their children but ifno choice were made both
would die, compassionate parents with equallove for their twins
would elect to save the stronger and see the weak onedestined for
death pass through the gates.'8 2
It is not at all clear why, in this case, the weak rather than
the strong child was'destined for death'. It seems as if it was the
parents' choice that destined theweaker rather than the stronger
child for death. This kind of choice, however, isnot legitimate
under R v Dudley and Stephens and R v Howe, and rightly so, asthis
implies the judgment that the life of a weaker person is worth less
than thatof a stronger person.
The arbitrariness of trying to avoid the question of choice by
pretendingthat a person was 'designated for death' can also be seen
when looking at theexample of the conjoined twins who were born in
England in April 2002 withonly one heart and a shared liver.83
While it turned out after the birth of thechildren that their
medical condition did not allow for a successful operationand plans
to separate them were abandoned, before their birth a separation
hadbeen envisaged. It was intended to benefit the twin in whose
side of the bodythe larger parts of the shared heart were located,
and would have caused the
79. See also D Burnett 'Conjoined twins, sanctity and quality of
life, and invention themother of necessity' (2001) 13 CFLQ 91 at
99.80. G Williams Textbook of Criminal Law (London: Stevens &
Son, 2nd edn, 1983) p 607.81. See also Sheldon and Wilkinson, n 41
above, at 169.82. Re A (Conjoined Twins: Medical Treatment) [2001]
1 FLR 1 at 53.83. Guardian, 1 May 2002, p 5.
-
392 Legal Studies
death of the other twin. In that case, it seems impossible to
say that one of thetwins was designated for death any more than the
other. Instead, the prognosiswas that each of them might have
survived a separation, but that the twin withthe larger parts of
the heart had the better chances of survival. Therefore, if ithad
come to a separation, the decision of which twin to save and which
twin tosacrifice would have been very clearly based on a choice,
and it would not havebeen possible to hide that fact behind the
allegation that one of the twins hadbeen designated for death. One
can only speculate whether, if faced with thatcase, Brooke LJ would
have come to a different conclusion than in Re A andhave decided
that the separation could not be justified under the doctrine
ofnecessity.
(iii) Proportionality and the principles of modern family
lawWith regard to the proportionality requirement of the necessity
defence,Brooke U came to the conclusion that 'the principles of
modem family lawpoint irresistibly to the conclusion that the
interests of Jodie must be preferredto the conflicting interests of
Mary' .84 This latter statement may be questioned,as there are no
settled 'principles of modem family law' which justified
thebalancing of the best interests of the two children, let alone
prescribed thatthe balance come down in Jodie' s favour. Ward U had
come to the conclusionthat the operation could only be performed
if, in addition to being in Jodie'sbest interests, it was also
lawful under criminal law principles. Brooke L, onthe other hand,
when performing the analysis of the applicable criminal
lawprinciples, refers back to Ward LJ's views on the children's
best interests. It isworrying that the final outcome of the case,
that is that the killing of Mary wasproportionate and therefore
justified under the necessity defence, was based onsuch uncertain
grounds.
(iv) Conflict of dutiesThe court seems to have regarded another
point as important in the context ofthe necessity defence - that of
the conflict of duties. According to Ward LI, thephysicians were
under a duty not to kill Mary, but they were also under a duty
tosave Jodie's life. The existence of a duty not to kill is
obvious, as it follows fromthe general prohibition intentionally to
take lives which can be inferred from thecriminal offence of
murder. Physicians are under a duty to provide the necessarymedical
care to their patients,85 so that they would, in principle, be
under a dutyto save Jodie's life. At first sight, therefore, it
seems as if the physicians were infact under an irresolvable
conflict of duties, in that whichever duty they chose tofulfil they
would necessarily fail to comply with their other duty, thus
incurringcriminal liability whatever their choice. It seems as if
both alteratives wouldresult in the violation of an interest of
equal rank, ie either the violation of Jodie'sright to life or that
of Mary's. This was Ward L's conclusion, and he thought that,in
such a situation, the doctors could 'not be denied a right of
choice if they areunder a duty to choose'. With regard to the
question of how this choice was to beexercised, he thought that
'the law must allow an escape through choosing thelesser of the two
evils'. For the same reasons that influenced Ward LJ's
balancing
84. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
99.85. Smith and Hogan, n 57 above, p 49.
-
Sanctity of life - are some lives more sacred than others?
393
of the best interests test, he argued in the context of the
conflict of duties that 'thecarrying out of the operation will be
justified as the lesser evil' .86 As the necessitydefence has as
its purpose to justify the choice of the lesser of two evils, it
seemsas if on this view, the physician's choice to operate could be
justified under thatdefence.
Ward LJ's analysis that the physicians found themselves under
conflictinglegal duties is not convincing. A duty not to commit a
criminal offence byactive behaviour is a general duty, the
violation of which can only be justifiedwhere, exceptionally, a
defence applies. A duty to act, on the other hand, isnot such a
general duty, but instead a duty the existence and content of
whichdepends on the circumstances of each individual case.87 If, in
any given case,a duty to act is in conflict with a duty not to act,
and if the violation of eachduty would violate an interest of equal
rank, then a violation of the duty notto act would constitute an
active and intentional interference with the rightsof an
individual, which, under general criminal law principles, can only
bejustified if a defence applies. Thus, if Mary's killing could be
justified underthe necessity defence, the killing would be lawful.
In that case, the referenceto a conflict of duties does not add
anything.
In the absence of any defence, the duty not to kill Mary would
seem in conflictwith a duty to save Jodie by actively and
unlawfully killing her sister. It is submittedthat the law cannot
and should not impose a duty to act the compliance with whichwould
amount to the commission of a criminal offence. Instead, the scope
of aduty to act is limited to what can lawfully be done.88 This is
why physicians are,for example, not under a duty to take the organs
from one patient to save anotherpatient's life, even though they
are, in principle, under the duty to save thepotential recipient's
life. Thus, where a duty to act and a duty not to act are
inconflict with each other, the duty not to act as the general duty
prevails, at leastwhere both duties refer to interests of equal
rank, unless a defence applies whichjustifies a violation of the
duty to refrain from acting. This analysis seems to besupported by
Lord Hailsham's statement in R v Howe that:
'In such a case a reasonable man might reflect that one innocent
human lifeis at least as valuable as his own or that of his loved
one. In such a case a mancannot claim that he is choosing the
lesser of two evils.'89
It seems to follow that there can be no conflict of duties
between a duty toact and a duty not to act in these cases, as a
person can be under a duty of caretowards loved ones and is
nevertheless barred from acting if that act amountedto an active
killing.9" If, for example, in the case of R v Dudley and
Stephensone of the crew members had killed the cabin boy in order
to save the life of hischild who was also on board, the killing
would not have been justified byreference to a conflict between the
duty not to kill the cabin boy and the dutyto save the life of
one's child.
86. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
60.87. R Card Card Cross and Jones Criminal Law (London:
Butterworths, 14th edn, 1998)p 40.88. See also H Watt 'Conjoined
twins: separation as mutilation' (2001) 9 MLR 237 at241-242.89.
[1987] AC 417 at 433.90. See also Card, n 87 above, p 639.
-
394 Legal Studies
A violation of the duty to act only affects the interests of the
individual inwhose interests this duty exists, while a violation of
the duty not to act leads toan unlawful active interference with
the rights of an innocent third party in orderto protect someone
else's interests. If, in such a situation, the conflicting
interestsare of equal rank, for example, if two lives are at stake,
it seems more acceptablenot to act, as an intervention would
involve a choice of one life over the other.The victim would
accordingly be forced to sacrifice his or her interests in orderto
protect someone else's interests of equal rank, and would thus be
regarded asless worthy of protection than the person in whose
favour the act was carriedout. On the other hand, the decision to
prohibit an active intervention in suchcircumstances could at first
sight be thought to involve the opposite judgment,ie that the life
of the person in whose favour the act would have been necessaryis
regarded as being worth less than that of the other party. However,
this equationdoes not work. All that a prohibition to act implies
is that where two rights ofequal rank can only be protected by the
sacrifice of one of them, neither of thetwo persons has a claim
that the other person needs to tolerate to be sacrificedfor the
protection of his or her interests. Therefore, the person in whose
favourno such sacrifice is necessary has the better claim.91
Brooke LJ suggested a slightly different approach when
describing theconflict as one of moral rather than one of legal
duties. He summarised the moralproblem by stating that some, who
are also opposed to the possibility of lateabortions on the grounds
of fetal abnormalities, believe that 'it would be animmoral act to
save Jodie if by saving Jodie one must end Mary's life before
itsbrief allotted span is complete', while others 'believe with
equal sincerity thatit would be immoral not to assist Jodie if
there is a good prospect that she mightlive a happy and fulfilled
life if this operation is performed'. He then came tothe surprising
conclusion that :
'This court is not equipped to choose between these competing
philosophies.All that a court can say is that it is not at all
obvious that this is the sort ofclear-cut case, marking an absolute
divorce from law and morality, whichwas of such concern to Lord
Coleridge and his fellow judges,'92
and caused them to reject the necessity defence in R v Dudley
and Stephens.Brooke U thus seems to suggest that Re A can be
distinguished from R v Dudleyand Stephens because conflicting moral
views regarding the right solution to thedilemma existed. This
analysis is not helpful. If, as was seen, no conflicting
legalduties exist, it cannot be a legal justification for the
physician to argue that he orshe disregarded a legal duty on the
ground that they felt under conflicting moralduties and chose to
fulfil the moral duty that did not correspond with a legal dutyin
violation of the conflicting moral duty which was also a duty
imposed by law.93
91. For a discussion of the problem from a philosophical
perspective, see eg M TooleyAbortionand Infanticide (Oxford:
Clarendon Press, 1983) pp 205-24 1, who argues that there can be
nomoral distinction between a duty to act and a duty not to act
(moral symmetry principle); see, onthe other hand, R Trammell
'Saving life and taking life' (1975) J Philosophy 131, who
arguesthat a duty to refrain from killing overrides the duty to
refrain from saving lives.92. Re A (Conjoined Twins: Medical
Treatment) [2001] 1 FLR 1 at 98.93. For a thorough discussion of a
conflict between moral and legal duties see Perkav The Queen [1984]
13 DLR (4th) 1 at 34-35 (Can Sup Ct) per Wilson J.
-
Sanctity of life - are some lives more sacred than others?
395
3.3 Self defenceWard U's analysis seems to point towards
self-defence, rather than necessity,as the applicable defence. If
the killing of Mary could be construed as defenceof another in that
the physicians come to the defence of Jodie, it would beeasier to
overcome the problem that the operation amounts to an
intentionaland active killing of Mary, as it is well-established
that self-defence can be adefence for murder.' However, the reason
for this essential difference betweenself-defence and other
defences is that in the case of self-defence the deadlyforce is
used against the attacker, even if the attacker is not responsible
forthe attack, for example, in the case of a young child.9 5 Ward U
classified Maryas an innocent aggressor and compared her to a
six-year-old boy who shootsother children at the school playground
and who, while not acting unlawfullygiven his age, could be
lawfully killed in defence of others. He regarded Maryas an
innocent aggressor as 'she sucks the lifeblood out of Jodie' and,
as byher 'parasitic living' she was killing Jodie, a state of
affairs that Jodie wouldnot have to tolerate. Accordingly, the
killing of Mary would be 'the doctorscoming to Jodie's defence and
removing the threat of fatal harm to herpresented by Mary's
draining her life-blood'.96 For his conclusion that Marywas an
aggressor, Ward U relied on two strands of reasoning: she is
portrayedas actively killing Jodie; and at the same time her
existence is seen as a stateof affairs that amounts to an
aggression towards Jodie. This seems to be basedon the thought that
the vital organs supporting both twins belonged to Jodieand that
Mary's use of Jodie's heart and lungs was an unjust attack on
Jodie'slife. As the reason why Mary used Jodie's organs was that
they shared acommon aorta, a fact no more under Mary's control than
under Jodie's, 97 itseems unrealistic to say that she was actively
killing her sister. It is equallyunconvincing to argue that her
very existence amounted to an attack on Jodie.Jodie and Mary were
born conjoined, so that neither of them ever enjoyed aseparate and
independent existence, and Mary never did anything to impingeon a
right acquired by Jodie. Thus, the frequently evoked analogy with
JudithJarvis Thompson's violinist who was plugged into another
person's circulationsystem in order to survive98 and from whom one
can lawfully unplug oneself,given that there is no duty to tolerate
such an invasion, does not work in thiscase, as Jodie was never
independent from Mary and there was never anyinvasive act by Mary
that caused the state of affairs.
Besides, in the case of conjoined twins, it seems arbitrary to
allocate organsto each twin and give each twin the claim to use
certain organs on the basis oftheir location in the body.99 This
becomes clear when looking at other cases of
94. A-G for Northern Ireland's Reference (No 1 of 1975) [1977]
AC 105 at 136, HLper Lord Diplock, and at 148 per Viscount
Dilhome.95. A Ashworth Principles of Criminal Law (Oxford: Oxford
University Press, 3rd edn,1999) p 139; Smith and Hogan, n 57 above,
p 259; S Uniacke Permissible Killing,(Cambridge: Cambridge
University Press, 1994) pp 227-231.96. ReA (Conjoined Twins:
Medical Treatment) [2001] 1 FLR 1 at 60-61.97. See also Watt, n 88
above, at 241-242.98. J J Thompson 'A defense of abortion' in T
Beauchamp and L Walters (eds) ContemporaryIssues in Bioethics
(Belmont California: Wadsworth Publishing Company, 1978) p 200.99.
Gillon, n 13 above, at 4.
-
396 Legal Studies
conjoined twins, for example, that of the twins born in England
in April 2002."Can it really be said when conjoined twins share a
heart and a liver that thesister in whose side of the body the
larger part of the shared organs is locatedhas a better claim on
them and that her sister, by using the shared heart, waskilling
her? Or should it be argued that this case was so different from
that of thetwins in Re A that a separation, even if medically
possible, would not have beenjustified? Another case demonstrating
the problems of the approach adoptedby Ward LJ in Re A is that of
conjoined twins who had been separated inPhiladelphia in 1987. When
they were three weeks old, one of them had a heartfailure, which
meant that without a separation both were going to die. Unlikethe
case of Jodie and Mary, in the Philadelphia case neither of the
twins had allthe organs necessary for survival, given that the twin
with the failing hearthad the only functioning biliary tract. As a
transplantation of the biliary tractwas more difficult and risky
than a heart transplant, the surgeons decided tosave the twin with
the heart failure and to transplant the heart of the other
twin,whose life was ended in the course of the operation, into that
twin.' 0' While thiscase may seem distinguishable on the facts, as
the operation did not just causethe death of one twin, but also
involved organ transplantation from one twinto the other, it shows
the randomness of the geographical location of the organsin the
case of conjoined twins and the pointlessness of trying to depict
one ofthem as an aggressor for the unjustified use of the other's
organs.
4 CONCLUSION
While it is admittedly very difficult to apply existing legal
categories to Re A,it is nevertheless possible. Given that the
operation amounted to the active andintentional killing of Mary,
the problem is most convincingly analysed as oneof criminal law,
and the lawfulness of the operation accordingly depended onthe
availability of a defence for murder. The law has adopted the
ethically soundapproach of regarding all lives as being of equal
value, regardless of thepredicted length of a life. The operation
could therefore not be justified underthe necessity defence, nor
was this a case of self-defence or of conflicting duties.Even
though in some situations life and death decisions are based on
quality oflife considerations, these cases are limited to those in
which it needs to be decidedwhether continued medical treatment of
a patient is in the patient's best interests.Thus, the question is
not whether or not a patient's quality of life is so poor thatthe
patient's life is no longer as valuable as the lives of others.
Instead, thequestion is whether, for the particular patient,
medical treatment awards sufficientbenefits to outweigh the burdens
involved, an analysis which might involve anassessment of the
patient's quality of life if the treatment is
administered,excluding, for example, treatment in cases in which
its only effect would be toprolong the patient's unbearable pain.0
2 However, quality of life considerations
100. Guardian, 1 May 2002, p 5.101. See G Annas 'Siamese Twins:
Killing one to save the other' (1987) 17 HastingsCenter Report
27.102. See the decisions in ReJ(A Minor) (Wardship: Medical
Treatment) [1991] Fain 33;Re C (Medical Treatment) [1998] 1 FLR
384.
-
Sanctity of life - are some lives more sacred than others?
397
cannot be used to justify the active killing of a patient.
Consequently, the lawpoints unequivocally towards the conclusion
that the operation could notlawfully be performed.
The Court of Appeal has twisted legal principles in order to
find a legal basisfor its view that it was better to save one twin
than let the lives of both of themcome to an early end. These
considerations would surely have been equallyapplicable in the case
of the conjoined twins who were born in April 2002,sharing a heart
and a liver. However, it is submitted that a separation of
thosetwins could not have been justified based on the reasoning
developed in Re A,as neither of the twins had the capacity to live
an independent life, neither ofthem used the organs of the other,
and neither of them was more designated fordeath than the other.
Thus, if that case had come to court, the court would eitherhave
had to distinguish the case based on legal considerations, an
outcome forwhich it might have been difficult to find a moral
justification. Alternatively,the courts could have found different
legal justifications for a separation, therebyextending the
principles established in Re A beyond the limits so carefully setby
Ward U. 103
The decision in Re A is not only problematic from a legal
perspective, but italso stands on a rather dubious moral
foundation. While at least Ward U triedto dispel any suspicion that
the decision might be based on an assessment thatMary's life was
worth less than that of Jodie, one cannot help but feel that
thiswas exactly what had led the court to the conclusion that Mary
could besacrificed for the benefit of her sister's survival, and
that the court only paid lipservice to the principle that 'the
universality of the right to life demands thatthe right to life be
treated as equal' ." The determinative difference betweenMary's and
Jodie's lives was the degree of their disabilities and their
ability tosurvive independently after a separation. The criterion
on the basis of whichthe court distinguished the value of the two
lives was therefore that of infirmity,which was rejected as a
legitimate consideration by Lord Mustill in Bland whenhe stressed
that 'the proposition that because of incapacity or infirmity one
lifeis intrinsically worth less than another is the first step on a
very dangerous roadindeed, and one which I am not willing to take'.
"I In Re A, the Court of Appealseemed willing to take a step on
that dangerous road in allowing the balancingof the value of two
lives, based on utilitarian considerations, thereby
furtherundermining the principle of sanctity of life.
103. Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
62.104. ReA (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at
53.105. Airedale NHS Trust v Bland [1993] 1 All ER 821 at 891.