It is the hopelessness, the assurance of an unhappy ending in the case of conjoined twins Jodie and Mary that is threatening to keep it in the courts for months.
Britain’s Court of Appeal has promised its decision today. But most agree there is no right decision, only a choice between two wrongs.
And that may lead to more appeals, more delays. Some worry the outcome will be decided by default, with inaction leading ultimately to the death of both children.
The babies are now six weeks old. Joined at the abdomen, Jodie is the stronger of the two and has the only functioning heart and lungs. Doctors argue her sister Mary is “essentially a parasite” growing at Jodie’s expense.
Doctors originally gave the joined babies only six months to live if not separated. A second medical opinion gives them a little longer — perhaps a few years — but no long-term survival if not separated.
The moral and legal questions surrounding whether or not to separate the twins — which would mean killing the weaker child so that the stronger could survive — are forcing the case through the appeals process of the British courts.
“For the judges involved it is one of the hardest rulings they will ever make,” writes Andrew Grubb, professor of medical law at Cardiff Law College, in the London Times.
The Long Court Process
Britain’s High Court ruled on August 25 that the twins should be separated.
The girls’ parents disagreed saying God, not doctors, should decide whether and for how long they live.
The case moved to the Appeals Court, which has agonized over its decision.
Lord Justice Ward, once of the three Appeals Court Judges, put it in painfully plain language when he asked in court, “Do we murder Mary to save Jodie?”
But the case won’t end here.
“Whoever loses in this case, will no doubt seek an appeal,” said legal expert Michael Zander of the London School of Economics.
The next step in the British appeal process is the House of Lords.
As with the U.S. Supreme Court, parties must request and be granted the right to appeal to the nation’s highest court. If granted, it would be a minimum of at least a few weeks before the case could be heard.
Following that decision, the case could be appealed once again to the European Court of Human Rights.
Lawyers for the ProLife Alliance, which has taken up the parents’ cause, say Article 2 of the human rights convention guarantees the right to life. It states “no one shall be deprived of life intentionally,” save in the case of a criminal ordered to be executed under due process of law. Thus, the operation would be tantamount to the murder of Mary.
Tim Owen, an attorney appointed to represent the interests of Jodie, argues the convention also includes an obligation to protect life — which the operation would do in the case of Jodie.
If the case ends up in the European Court, “It could take a very, very long time,” said Zander.
The Medical Clock Ticks
While judges and barristers spend sleepless nights examining what one called “a tragedy too horrifying to contemplate” the medical profession deals with its own nightmares.
Jodie, who has the only functioning heart, is not growing despite eating well. They suspect her sister, Mary, the baby doomed to die if the twins are separated, might be growing at Jodie’s expense.
Dr. James O’Neill of Vanderbilt University in Nashville, Tenn., is one of the world’s leading specialists in Siamese twins. He warns that a lengthy legal appeals process could result in the death of both girls.
“Every day that goes by, the process of the ‘good’ body coming under pressure from the weaker one will increase substantially,” said O’Neill. “This progressive failure would first lead to the collapse of the kidneys, intestines and the liver before moving to impact the coronary system and, ultimately, the brain.
The optimal time for a separation, says O’Neill, is when the twins reached the two- to three-month period, when their organs would be well enough developed to sustain the shock and trauma of the operation.
That time is fast approaching.