Magazine article The Human Life Review

Babies' Lives in the Judges' Scales

Magazine article The Human Life Review

Babies' Lives in the Judges' Scales

Article excerpt

The Siamese twins, "Jodie" and "Mary," present not just a hard case but an "un-easy" case. The moral dilemma is so acute that if you do not have some sense of unease, you have not understood the complexities involved. It was therefore comforting for the public, if disturbing for the judges themselves, to hear during the course of argument in the Court of Appeal that the judges were having sleepless nights.

Speaking to the BBC on his way into court last Friday, however, Lord Justice Ward's tone jarred ("half the country will think we're potty") and the judges' hesitancy during the hearing seemed to give way to a misplaced tone of certainty as they presented their judgments in court in summary form. Lords Justices Ward, Brooke and Robert Walker unanimously supported Mr. Justice Johnson's decision to order the separation of the twins, notwithstanding the parents' religious convictions to the contrary, with the inevitable result that the weaker twin would die during the operation.

The English legal system instantaneously published on the Internet the judges' full 130 pages of justification, thus allowing the whole world to examine their approach at The judges considered that the fundamental family-law principles of deciding in favour of children's best interests or welfare prevailed. They did not believe that the criminal law of murder would apply to deliberate separation of Siamese twins even if doctors could foresee that one twin would inevitably die during the operation.

Lord Justice Brooke asked: "Would the proposed operation amount to the positive act of killing Mary? The answer is Yes. Would the doctors be held to have the intention of killing Mary, however little they desire that outcome? The answer is again Yes. The doctrine of double effect, which permits a doctor, acting in good faith, to administer pain-killing drugs to her dying patient, has no relevance in this case. This leaves open the single question, `Would the killing be unlawful?' To that, all the judges have answered `No."'

The judges were grateful to Archbishop Cormac Murphy-O'Connor of Westminster for his submission, in particular accepting his five principles of ethical decision-making (given in abridged form in The Tablet last week), all of which pointed in the opposite direction to the one they took.

The judges did not so much counter the archbishop's points as offer hypothetical cases designed to encourage the public to assume that we must sometimes plump for the kind of conclusion which they reached in this case. If a six-year-old child were running amok with a gun in a playground, killing other children, and you had the opportunity to shoot the child dead, would you do so to save other children? All these examples (which included a cast of crashing planes, parachutes and caravans surrounded by bandits) strike me as unhelpful analogies.

To begin with, they involve a snap decision, whereas the case of Jodie and Mary has already taken weeks and could last for months. In the playground, for instance, one is unlikely to have the benefit of an amicus curiae brief from the Archbishop of Westminster. Similarly, people faced with hypothetical or real dilemmas where there is a chance to save one life at the expense of another have little time to ponder the nuances of the doctrine of double effect, whether facing death on a mountain (would you cut the rope sending a fellow mountainer to his death in order to save yourself or another?) or on a sinking ship (would you sweep aside a person frozen by fear or the cold who blocks the path of dozens to safety from a capsized ferry, as happened in the Zeebrugge disaster?).

A second difficulty is that in hypothetical cases there is seldom only one way forward to save a life or lives. But in the case of Jodie and Mary we are told that there is no way in which both can survive for long. In the playground story, for example, shooting to kill the young boy is unlikely to be the only option for restraining him. …

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