Re A (conjoined twins: surgical separation) [2001] 1 FLR 1

Conjoined twins Jodie and Mary could be surgically separated only by causing Mary’s inevitable death, but non-separation meant both would soon die. Their devout Catholic parents refused consent. The Court of Appeal held the operation was in Jodie’s best interests and, applying necessity, could lawfully proceed.

Facts

Jodie and Mary were ischiopagus tetrapus conjoined twins born in Manchester on 8 August 2000 to parents from a foreign country who were devout Roman Catholics. Each twin had a separate brain, heart, lungs, kidneys and limbs, but they were fused from the umbilicus to the sacrum, had complex shared pelvic and urogenital structures and a single large bladder. Crucially, Jodie’s aorta fed into Mary’s aorta; venous return passed from Mary to Jodie, so that Jodie’s heart and lungs supplied oxygenated blood for both twins.

Jodie was anatomically and neurologically near-normal, with a good prognosis for normal intelligence and mobility (subject to pelvic, spinal and anorectal reconstruction). Mary, by contrast, had a grossly abnormal “primitive” brain, a massively enlarged and poorly functioning heart and virtually no functional lung tissue. Expert evidence from the treating team and from Great Ormond Street Hospital was that Mary was incapable of separate survival and “lives on borrowed time, all of which is borrowed from Jodie.”

If the twins remained united, Jodie’s heart would progressively fail under the strain of perfusing both bodies, causing the death of both twins within months (St Mary’s estimated three to six months, Great Ormond Street thought possibly somewhat longer but still poor). Elective separation, by contrast, carried a low operative risk for Jodie (St Mary’s estimated 5–6% mortality, Great Ormond Street 1–2%), with a realistic expectation of long-term, good-quality life, though with possible continence, musculoskeletal and gynaecological issues and potential need for further surgery.

The proposed separation involved detailed intra-operative exploration to assign organs, separation of fused pelvic bones, spinal and soft tissue division and, crucially, clamping and severing the arterial connection at the united sacrococcygeal vertebrae. As Mr B, the paediatric surgeon, explained:

“Finally and eventually we have a major blood vessel, which is the continuation of Jodie’s aorta, which is bringing blood across to Mary, and similarly the vena cava, which is returning blood from Mary to Jodie. Those would need separating, dividing. It is at that point that we would expect that Mary would then die.”

Mary would be under general anaesthetic and her death would be rapid. There was no prospect of maintaining her on a heart-lung machine or performing a heart-lung transplant.

The parents, after extensive discussion with doctors, their priest and advisers, refused consent to separation. They saw both daughters as equal in God’s eyes, believed “everyone has a right to life” and could not agree to an operation “that will result in the death of our daughter, Mary.” They were also deeply concerned about caring for a disabled child in their remote homeland with few medical facilities.

The hospital, unable to proceed without consent yet unwilling simply to acquiesce in the death of both children, issued proceedings under the inherent jurisdiction and the Children Act 1989 seeking declarations that separation (elective or urgent) and other necessary procedures would be lawful. Johnson J granted a declaration permitting elective separation. The parents appealed.

Issues

1. Status of the twins

The court first considered whether Mary was a separate legal person born alive. Medical evidence was that, although she would almost certainly have died at or before birth had she been a singleton, she was born with a beating heart, some respiratory effort and limb movements. The court held that there were two separate persons, both “reasonable creatures in being” for the purposes of the criminal and civil law, and firmly rejected any notion of “monstrous birth”.

2. Medical and family law issues

The key welfare questions under the inherent jurisdiction and section 1 of the Children Act 1989 were:

• Whether separation was in Jodie’s best interests.
• Whether separation was in Mary’s best interests.
• If their interests conflicted, how the court should proceed, given that each child’s welfare is said to be “paramount”.
• What weight to give to the parents’ religiously‑based refusal.

It was common ground that parents ordinarily have authority (and a duty) to consent to medical treatment for their child, but parental rights are subordinate to the child’s welfare and subject to the court’s overriding jurisdiction. The court stressed that it must make an independent judgment, giving “due weight” but not determinative effect to the parents’ views.

3. Criminal law issues

The central criminal law question was whether surgeons performing the separation, thereby causing Mary’s certain death, would commit murder. This required analysis of:

• Whether the surgery constituted a positive act “killing” Mary.
• Whether the surgeons would have the requisite intent (applying R v Woollin).
• Whether any justification or excuse (necessity, self‑defence or analogous principles) rendered the killing not “unlawful”.

The court also considered (in Ward LJ’s judgment) whether failure to operate might itself constitute a culpable omission towards Jodie, given the doctors’ and parents’ duties of care.

4. Human Rights (Article 2 ECHR)

The Human Rights Act 1998 was about to come into force. The court considered whether Article 2’s protection of the “right to life” would render separation incompatible with the Convention, particularly in relation to deliberate deprivation of life.

Judgment

1. Jodie’s best interests

Ward LJ (with whom Brooke and Robert Walker LJJ agreed) held that the judge’s conclusion that separation was in Jodie’s best interests was “plainly right”. Without separation, Jodie faced almost certain death within months, likely preceded by heart failure, increasing breathlessness and significant distress; she would also live a profoundly restricted existence, unable to sit, crawl or walk, and dragged by her non‑developing twin.

With elective separation, the risk of death was very low and the expert evidence (notably from Great Ormond Street) was that Jodie could expect a normal or near‑normal life expectancy, normal intelligence, probable normal mobility and realistic prospects of continence and sexual function, albeit with possible further surgery. Ward LJ described the benefit of separation for Jodie as “infinitely greater” than allowing her to die alongside Mary.

2. Mary’s best interests

The court subjected Johnson J’s reasoning on Mary to close scrutiny. Ward LJ accepted that Mary’s condition was “utterly dire”; she existed “pathetically on borrowed time” with no prospect of improvement, high risk of further neurological deterioration, and great uncertainty as to whether she could feel pain, though there was evidence of primitive responses.

The judge below had reasoned that the remaining months of Mary’s life would “not simply be worth nothing to her, they would be hurtful” and that prolonging her life would be “very seriously to her disadvantage”. Ward LJ rejected the conclusion that Mary’s life was “worth nothing”:

“I am satisfied that Mary’s life, desperate as it is, still has its own eneliminable value and dignity.”

Applying the sanctity of life principle and critiques of “quality of life” reasoning (drawing on Airedale NHS Trust v Bland and academic commentary), he held that English law must not treat one human life as intrinsically less valuable than another because of disability.

However, he also held that separation could not be characterised, as in Bland, as a withdrawal of futile treatment. Mary was not being maintained by an artificial medical intervention; the proposed surgery would be a positive invasion of her body that would terminate, not prolong, her life. Framing the question correctly – “is it in Mary’s best interests that an operation be performed … when the certain consequence … is that she will die?” – Ward LJ answered “no”. The operation, viewed in isolation, was contrary to Mary’s best interests.

3. Balancing the children’s interests

This led to an apparent impasse: separation was in Jodie’s interests but not in Mary’s. The court therefore addressed whether and how it could reconcile the statutory command that each child’s welfare is “paramount”. Drawing on Birmingham CC v H and Court of Appeal authority, Ward LJ held that where the welfare of two children is directly in conflict, the court must undertake a balancing exercise, seeking the “least detrimental alternative” rather than abandoning decision‑making.

He rejected the idea that the court could simply refuse permission and let nature take its course. Instead, he weighed:

• The equal intrinsic right to life of each child.
• The “worthwhileness of the treatment” for each child (distinguished from comparative worth of their lives).
• The fact that Mary’s continued existence was entirely parasitic on Jodie and would inevitably cause Jodie’s early death: “she sucks the lifeblood of Jodie and she sucks the lifeblood out of Jodie.”
• The reality that “Mary is beyond help” whereas Jodie could be saved.

He concluded that the scales came down “heavily” in Jodie’s favour: the best interests of both twins, considered together, pointed to giving the chance of life to the child capable of independent existence, even at the cost of sacrificing the life “so unnaturally supported”.

4. Weight to parental wishes

The court expressed deep sympathy and respect for the parents, noting their dignity and honesty. It reiterated that parental views command “very great respect” but are “subservient” to the child’s welfare. Referring to Gillick, Re K.D., Re Z and Re T (wardship: medical treatment), the court stressed that its duty was to exercise its own independent judgment.

Ward LJ considered that the parents had understandably focused on their horror at “killing” Mary and their pessimism about Jodie’s future disability, while under‑estimating Jodie’s right to life and capacity to benefit from independence, and the fact that non‑separation meant Jodie’s certain death. Their wishes, though sincere and rooted in faith, could not prevail against the children’s objectively assessed interests.

5. Criminal law analysis

All three Lords Justices accepted that the operation would be a positive act invading Mary’s bodily integrity and that, under the Woollin direction, the surgeons would intend her death, since it was a “virtual certainty” they appreciated. The act would be a factual cause of her death. The question was whether it would be “unlawful”.

Ward LJ rejected reliance on the doctrine of double effect in this context, as the surgery was not undertaken in Mary’s best interests. He explored whether failure to operate might itself be a culpable omission towards Jodie, given the doctors’ and parents’ duties to act in her best interests, reinforcing the sense of an inescapable conflict of duties.

Both Ward and Brooke LJJ undertook an extensive review of the doctrine of necessity and related concepts (public and private necessity, duress of circumstances, self‑defence, and Canadian authority such as Perka), and of R v Dudley and Stephens and R v Howe. They accepted that, while necessity or duress cannot generally justify the intentional killing of an innocent person, that principle could not mechanically resolve this unique case, where:

• Mary was “self‑designated” for a very short life; she could not be saved by any medical means.
• Her continuing existence would soon and inevitably kill Jodie.
• The doctors owed legal duties to both children which could not simultaneously be fulfilled.

Ward LJ reasoned that the surgeons, like the court, must be allowed to choose the “lesser of two evils” where legal duties are in irreconcilable conflict. Applying a modified notion of self‑defence or necessity, he held that removing the fatal threat to Jodie posed by Mary’s dependence could be lawful. The operation would therefore not be an “unlawful” killing.

Brooke LJ reached the same conclusion, formulating the test for necessity by reference to Sir James Stephen’s classic three conditions (inevitable and irreparable evil; no more done than reasonably necessary; evil inflicted not disproportionate to evil avoided). Given the family law conclusion that Jodie’s interests must prevail, all three conditions were satisfied.

Robert Walker LJ likewise concluded that the operation would not be unlawful. He emphasised that:

“Mary’s death would not be the purpose of the operation, although it would be its inevitable consequence. The operation would give her, even in death, bodily integrity as a human being. She would die, not because she was intentionally killed, but because her own body cannot sustain her life.”

He distilled his conclusions in ten succinct propositions, including that the operation was in the best interests of both twins (taken together) and that the surgeons, acting in good faith in accordance with proper clinical judgment, would not act unlawfully.

6. Human Rights Act 1998 and Article 2 ECHR

The court considered Article 2, acknowledging that it enshrines one of the Convention’s most fundamental rights. Ward and Robert Walker LJJ held that Article 2 did not alter the analysis or prevent the operation. Robert Walker LJ concluded that “intentionally” in Article 2(1) refers to purpose, not to the broader domestic concept articulated in Woollin, and that the Convention did not preclude the operation where national law, properly applied, treated it as justified.

Ward LJ added that, even if the right to life were read literally as a positive obligation to protect both twins’ lives, the impossibility of preserving both rendered a balancing exercise inevitable, and the Strasbourg court would likely accept the domestic court’s resolution.

Implications

The Court of Appeal unanimously dismissed the parents’ appeal and upheld the declaration authorising elective separation. Ward LJ stressed that the decision should not be viewed as a general licence for doctors to end life once they judge a patient cannot survive; its authority is strictly confined to highly specific circumstances:

“They are that it must be impossible to preserve the life of X. without bringing about the death of Y., that Y. by his or her very continued existence will inevitably bring about the death of X. within a short period of time, and that X. is capable of living an independent life but Y. is incapable under any circumstances (including all forms of medical intervention) of viable independent existence.”

The case is a leading authority on judicial resolution of life‑and‑death medical dilemmas involving children, the scope of parental authority, and the limited but real role of necessity and self‑defence concepts in medical criminal law. It underscores that courts, not clinicians or parents alone, must ultimately decide such conflicts, using the welfare principle, careful factual assessment and principled criminal law analysis, while reaffirming the fundamental sanctity and equal value of every human life.

Verdict: The Court of Appeal (Civil Division) dismissed the parents’ appeal and upheld the declaration that the hospital could lawfully perform elective surgical separation of the conjoined twins, thereby saving Jodie while inevitably causing Mary’s death.

Source: Re A (conjoined twins: surgical separation) [2001] 1 FLR 1