Last week the judgments of the Court of Appeal in the Conjoined Twins case were chosen as one of the 15 leading cases in ICLR’s 150 years of law reporting. In his introductory comments, Lord Neuberger, the President of the Supreme Court, said:
“Although law overlaps with religion and morality, it is very rare indeed for judges to be faced with a decision which throws up such fundamental and controversial moral and religious issues as Conjoined Twins. Two girls, Jodie and Mary, were born joined at the hip. If they were surgically separated, Mary would die at once, but Jodie would have a 94% chance of survival; if they were not separated, they would both almost certainly die in six months. The question was whether, despite their parents wishing nature to take its course, the court could or should authorise the surgery, even though it would result in Mary’s death, and thus might well amount to murder.
To this very difficult question, the Court of Appeal said yes. All three members of the court accepted that the parents’ wishes should count, but they did not prevail. The court invoked R v Dudley and Stephens (the famous cannibalism-after-shipwreck murder case) and considered that, bearing in mind that the purpose of the operation was to save a life not to cause a death, the doctrine of necessity could be relied on. The operation was performed, and, as predicted, Mary died and Jodie survived. Bearing in mind the issues thrown up by this case, it has unsurprisingly been the subject of many articles, some strongly critical and some strongly supportive.”
This was the most moving and intellectually demanding case I was ever involved in. In papers I have lodged with the Judicial Institute at University College, London, I have included a talk about that case which I gave in Washington DC ten years ago to an audience of senior judges from across the common law world (including Justice Sandra Day O’Connor, of the US Supreme Court). I ended that talk by saying:
“The operation was performed in the first week in November. After the surgeon cut the common aorta, the team did what they could to keep Mary alive, but she died very quickly. Although we originally directed anonymity, very soon the whole world knew that the family came from Gozo, and we lifted our order soon afterwards. Mary’s body was taken back to Gozo, where it received a public funeral. She is buried in a corner of the cemetery on a hill overlooking the town.
Jodie was well enough to go home with her parents the following June. Her mother was then reported as saying:
‘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.’
And she also said:
‘Jodie gives us joy in our lives. She gives us something to look forward to and so much happiness.’
In August 2002 Jodie had a new sister. Her parents gave her the same name as the child who had died. Her mother said:
‘When you have been through something so major, you are frightened it will happen again, but everything was fine and we are all so happy.’
Now, 10 years later, the story has been brought up to date. Jodie is happy and well and looks forward to becoming a doctor: see this very moving article.
As one of the three judges who gave the go-ahead to the operation that killed Mary and saved Jodie, it is good to learn that the outcome has been as happy as it possibly could have been in all the circumstances.