Agonizing Over Who Lives, Dies

This is a dilemma for a modern-day Solomon that pits religious parents against the state, and a healthy twin against the conjoined sister who depends on her for survival.

Should the month-old twins be separated in an operation that will end the life of the weak sister but save her stronger sibling?

Or should they be left as they are, joined at the abdomen with only one functioning heart and one set of lungs--deliberate inaction that doctors say will end the healthy girl’s life along with her sister’s within six months?

That is the choice facing British Court of Appeal justices who admit that the tragic case of “Jodie” and “Mary” is keeping them awake nights. One of them, Lord Justice Alan Ward, told a lawyer advocating surgery that his job was to convince the court that it could “save Jodie but murder Mary.”

“I put it starkly, but that may be what you are inviting the court to do,” he added uncomfortably.

There is little room for comfort in a case that so blurs the boundaries between right and wrong and means inevitable anguish for first-time parents whose joy of pregnancy turned into a nightmare. For them, there is no winning outcome.

Devout Roman Catholics from a Mediterranean island, the parents are adamant that the surgery should not take place. To perform it would be to commit the unbearable sacrifice of one daughter for the other, they say.

“We cannot begin to accept or contemplate that one of our children should die to enable the other one to survive,” the couple said in a written submission to the court. “That is not God’s will.”

But British doctors caring for the twins argued for the operation, and a High Court justice agreed with them Aug. 25, ordering surgical separation against the wishes of the parents. The couple appealed along with lawyers representing the weaker twin--such is the complexity of the case that the parents and each twin have their own attorneys, as does the public health service.

British and U.S. courts have often intervened to protect the lives of children against their parents’ wishes to allow a blood transfusion in the case of a Jehovah’s Witness, or the administration of drugs in the case of a Christian Scientist.

But a case such as this one hasn’t arisen before.

Very little is known about the family whose predicament has gripped the nation. Its members’ identities are being kept secret; the girls have been given false names in court.

The couple haven’t been married long and live with the twins’ paternal grandparents in a conservative community that, according to their lawyers, would ostracize them if it thought they had agreed to the murder of one of their children.

In addition, superstitious members of the community are said to view physical handicaps such as those a surviving Jodie might have as punishment for past sins. It is a stigma the parents say they do not want their daughter to suffer.

The 44-year-old father worked in Australia to save money before returning home to start a family. His wife, in her 20s, discovered that she was carrying conjoined twins during her third month of pregnancy and sought help. She traveled to St. Mary’s Hospital in Manchester, known for such care, in the hopes the girls could be safely separated, apparently never imagining she would one day fight to block their treatment.

Healthier Twin Would Face Several Surgeries

The twins were born Aug. 8 with only Jodie’s heart and lungs working to sustain the two of them. As a result, both suffer from a lack of oxygen, and Mary has severe brain damage. She is tube-fed, unable to cry and able to open only one eye.

Jodie, by contrast, has an apparently healthy brain. If separated from her sister, she is likely to need reconstructive abdominal, vaginal and rectal surgery and could suffer from permanent incontinence. With some orthopedic treatment, she should be able to walk unaided, if unevenly, the parents’ legal team acknowledged.

In the words of High Court Justice Robert Johnson, “Jodie is a bright, alert baby, sparkling, sucking on her [pacifier], moving her arms as babies do. For Mary, things are very different. Her face is deformed, but more importantly, she has no effective heart or lung function. She lives only because of her physical attachment to Jodie.”

Johnson ruled for surgery in the interest of Jodie. He acknowledged that active termination of a life is illegal in Britain but argued that separating the twins wasn’t taking an active step to end Mary’s life--such as administering a lethal injection would be--but rather was akin to the withdrawal of life support. As in removing a feeding tube or a ventilator, doctors would be cutting off Mary’s supply of oxygenated blood.

Johnson said there would be an “immediate consequence for Mary without any invasion of her body.”

It was a decision based on the utilitarian belief, widely held in the medical and legal establishments, that it is better to save one child than to lose both. But even if the Court of Appeal justices accept this premise, they are questioning the court’s conclusion that an operation wouldn’t amount to active intervention in Mary’s death.

“The moment the knife goes into that united body, it touches the body of unhappy little Mary,” said Lord Justice Ward, one of three justices hearing the appeal. “It is in that second an assault. You fiddle about, rearrange the plumbing. An hour later, you put a clamp on the aorta [cutting of Mary’s blood supply]. For what justification? None of hers.”

The justices have seemed to be searching for a way to uphold the lower court decision, asking lawyers whether the twins should be treated as two individuals or one, and whether Mary had, in fact, been “born alive” given that she depends on her conjoined twin for blood and oxygen.

“What is this creature in the eyes of the law?” asked Lord Justice Henry Brooke.

God’s Will Cited in Both Sides of Dispute

They sought a second opinion on the sisters’ condition from doctors experienced in the separation of twins. The doctors backed the original assessment.

To the parents’ assertion that surgery violated God’s will, Lord Justice Ward responded that “it was not God’s will that this baby should live because it was not born with the capacity to live. Nobody in their right mind would hook this child onto a life-support system.”

He noted that she was “unnaturally hooked onto her sister, draining her sister’s life, and, in the end, is going to kill her sister.”

But addressing attorneys for the doctors, he returned to the conclusion that he said he had reached at 3 a.m.: that surgery would, indeed, be an active intervention in Mary’s death.

“If what you propose is the murder of Mary, then at the moment, I don’t see how you have the interests of one balanced against the other,” he said, adding that he didn’t know how the court could give its consent to what would be perceived as “murder or unlawful killing.”

Britain’s small antiabortion organizations and Roman Catholic Church concur with this view, and the archbishop of Westminster, Cormac Murphy-O’Connor, warned the court against setting “a dangerous precedent” in British law.

An Italian cardinal has offered the family “a safe haven” at a hospital in northeast Italy with free medical services for the girls. But lawyers for the parents say they fear that if they tried to leave the country, attorneys representing Jodie and the doctors would apply for the girls to be made wards of the court.

If the parents lose their appeal, they have the option of taking the case to the House of Lords, Britain’s highest court, and even the European Court of Human Rights in Strasbourg, France.

While Catholic theologians insist that it is clearly immoral to cut short one life to save another, Robert Winston, a doctor and Orthodox Jew, argued that what is keeping the justices awake at night is that there is no clear-cut right or wrong in this case.

“The need to protect life is paramount, not absolute. There are plenty of situations where we [society] do take life. Many systems support capital punishment, and we fight what is called a just war on the grounds of ‘kill or be killed,’ ” Winston said. He added that many people support abortion, particularly in cases in which the mother’s life is at stake.

“Under Jewish law,” he said, “there is no question but that there would be permission to operate and remove the weak twin, who would be seen as a rodef, or a pursuer.”

At the same time, however, he noted that conjoined twins have lived into adulthood and warned that medical experts cannot pinpoint the time when the sisters will die. Nor, he said, can they be certain of the health and quality of life that Jodie might experience after separation.

He argued that the parents’ well-being should be considered and that their religious beliefs and social situation not be summarily dismissed. The parents have said the medical resources to care for a disabled Jodie aren’t available at home and that leaving her behind in Britain would be agonizing.

“My own view is that irrespective of the need to protect life, it must come down to the parents’ wishes, and they have said clearly that they don’t want the girls to be operated [on],” Winston said.

Many political observers, philosophers and even liberal Britons find themselves siding with the religious parents of Jodie and Mary for a variety of secular reasons. Many say that while they would opt for surgery if they were in the parents’ shoes, they would opt for the parents if they were in the justices’ shoes.

They don’t want to see the state usurp the right of loving parents to decide their children’s fate, particularly when it is the parents who will be left “holding the bag”--committed to a lifetime of servitude to a disabled daughter with too few resources and a community that could turn against them.

Others say they fear a medical precedent of using one baby to save another that could someday lead a court, for example, to allow doctors to take organs from an anencephalic baby without parental consent to save another with a congenital heart problem.

‘There Is No Right Answer’ to Dilemma

Still others, sounding like veterinarians faced with putting an animal out of its misery, argue that not every human life is sacred. The mutant babies should have been aborted before they were born, they say, and since they were not, the humane response is to let them die a natural death; the court should in effect put them out of their misery.

Jonathan Glover, director of the Center of Medical Law and Ethics at King’s College, London, argues that the very grayness of this moral dilemma may be reason enough to let the parents decide.

“This is a matter of convention, and it is very blurry--there is no right answer,” Glover said. “Ethical beliefs depend on a mixture of rationally worked out principles and a lot of intuitive feelings which are sometimes disregarded as irrational.”

Nonetheless, he said he expects the Court of Appeal justices to uphold the lower court decision to allow the surgery to go ahead, to choose action over inaction.

“No judge ever likes to go to bed with the feeling that a child is dead as a result of his or her decision,” Glover said. “Of course, here it happens that, no matter what, a child will die.”