A (Children), Re

Factual and Procedural Background

This opinion concerns a highly unusual and tragic case involving conjoined twins, referred to as Jodie and Mary, born joined at the lower abdomen with separate brains, hearts, and lungs. Mary's vital organs are severely deficient, rendering her incapable of independent survival, and she survives only due to a shared arterial connection with Jodie. Separation surgery is medically feasible but will inevitably cause Mary's death due to the severing of the shared artery. Without separation, both twins face death within months due to Jodie's heart failure from supporting both circulations.

The twins’ parents, devout Roman Catholics and refugees from a foreign country, refuse consent to the operation on moral and religious grounds, believing it is God's will that both children live or die together. The hospital sought a court declaration that the separation surgery may lawfully be carried out despite parental refusal. Johnson J granted the declaration, and the parents appealed. The Court of Appeal heard the appeal, with multiple counsel representing the parties, including the Official Solicitor and amicus curiae, and received written submissions from third parties including the Archbishop of Westminster and the Pro-Life Alliance.

The case attracted intense media attention, but an injunction was made to protect the anonymity of the family and medical staff. The court examined in detail the medical facts, the parents’ views, the medical law, family law, criminal law, and human rights considerations relevant to the proposed surgery.

Legal Issues Presented

1. Is it in Jodie's best interests that she be separated from Mary?
2. Is it in Mary's best interests that she be separated from Jodie?
3. If those interests conflict, how should the court balance the interests of each twin?
4. If the operation is in the best interests of the twins, can it be lawfully performed without constituting unlawful killing?
5. Are Mary and Jodie to be regarded as two separate persons each having a life in being for legal purposes?

Arguments of the Parties

Appellant's Arguments (Parents)

• The operation is not in Mary's best interests as it will cause her death.
• They cannot consent to an operation that will intentionally kill one child to save the other, as this conflicts with their religious beliefs and moral convictions.
• They assert the right of parents to make decisions for their children and submit that the court should respect their refusal of consent.
• They raise concerns about the practical and financial ability to care for Jodie post-operation in their home country.
• They challenge the legality of the operation on the grounds that it constitutes unlawful killing.

Respondents' Arguments (Hospital and Supporting Parties)

• The operation is in Jodie's best interests, offering her a chance of a relatively normal and extended life.
• Mary’s life, while valuable, is severely compromised and prolonging it causes her no benefit and may cause suffering.
• The court has the jurisdiction to override parental refusal where it is in the best interests of the child.
• The operation, though resulting in Mary's death, is lawful as it is not intended to kill Mary but to save Jodie; Mary's death is an inevitable but unintended consequence.
• The doctrine of necessity and principles of criminal law justify the operation as the lesser of two evils in a unique and tragic circumstance.
• The operation respects the bodily integrity and dignity of both children, providing Jodie with autonomy and a chance at life.
• The Human Rights Act 1998 and Article 2 of the European Convention on Human Rights do not prohibit the operation, which is consistent with the right to life of both children.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the fundamental principle that the bodily integrity of every person is inviolable and that any medical intervention without valid consent is unlawful unless justified by law. The parents, as holders of parental responsibility, have the right to consent or withhold consent to treatment, but this right is subordinate to the child's welfare, which is the court’s paramount consideration under the Children Act 1989.

The court accepted that both twins are legally separate persons born alive, each with a right to life and bodily integrity. The court carefully analyzed the medical evidence, concluding that separation surgery would be overwhelmingly in Jodie's best interests, offering her a chance at a longer life with reasonable quality, despite some risks and potential disabilities. Conversely, Mary’s condition is dire; she is incapable of independent survival and likely suffers little or no pain, but her continued life offers no prospect of improvement and may cause discomfort.

The court found the judge erred in characterizing the proposed surgery as a withdrawal of treatment (an omission), as it involves positive, invasive acts that will inevitably cause Mary's death. Therefore, the lawfulness of the operation required separate consideration.

Applying criminal law principles, the court recognized that the operation would amount to an intentional killing of Mary, as her death is a virtually certain consequence of the surgery and fully appreciated by the doctors. The doctrine of double effect was rejected as inapplicable, since Mary receives no benefit from the operation and her death is not a side effect but an inevitable outcome of positive acts.

The court explored the doctrine of necessity, concluding that while it is generally not a defence to murder, the unique circumstances here—conflicting legal duties to two patients, the inevitability of death of one twin, and the proportionality of the operation to preserve the life and dignity of the other—justify a development of the law to permit the operation. This is supported by the balancing of the twins’ welfare interests and the principle that the lesser of two evils may be chosen.

The court also considered the Human Rights Act 1998 and the European Convention on Human Rights. It held that the operation does not violate Article 2’s right to life, as the operation is not intended to kill Mary but to save Jodie, and Mary’s death is an unavoidable consequence of her non-viability. The court found no breach of Articles 3 or 8.

Respect was accorded to the parents’ religious and moral views, but the court emphasized its duty to decide in the twins’ best interests, independent of parental wishes if necessary.

Ultimately, the court held that the operation is lawful, in the best interests of the twins, and that the sacrifice of Mary’s life, while tragic, is justified by the need to preserve Jodie’s life and dignity.

Holding and Implications

The court’s final decision is to DISMISS THE APPEAL, thereby upholding the order permitting the hospital to carry out the separation surgery on the conjoined twins.

The direct effect is that the hospital may lawfully perform the operation which will save Jodie’s life but result in Mary’s death. The court established that the operation is in the best interests of both twins, notwithstanding the inevitable sacrifice of one. The judgment clarifies the application of medical, family, criminal, and human rights law to this unique and tragic scenario.

No broader precedent beyond the exceptional facts of this case is intended or established. The court emphasized the uniqueness of the circumstances and that the decision does not authorize any general principle permitting the intentional killing of one patient to save another outside such extraordinary conditions.