+ 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.