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Conjoined Twins: the cutting edge
Bev Clucas
Lecturer in Law, University of Hull
and
Kath O'Donnell*
Lecturer in Law, University of Hull
* The authors would like to acknowledge the helpful observations of those
who have commented on earlier versions of this article, and in particular the
comments of the anonymous referee.
Copyright © Clucas and O'Donnell 2002.
First published in the Web Journal of Current Legal Issues
Summary
Introduction
Much of the history of humankind has been taken up with
the advancement of the possible, and the present day is no exception. What
is novel is that the extensions of what it is possible to do, from more
efficient ways of killing people to the cloning of humans, have fast outstripped
the ability of society to come to a consensus on what is permissible or right.
Some of these novel questions on the cutting edge of ethics are addressed by
committees of specialists and experts, such as the Human Fertilisation and
Embryology Authority in relation to assisted reproduction, but in many cases the
issues fall to be decided by the courts. One current and particularly poignant
debate is that of the separation of conjoined twins where both children will die
unless one child is sacrificed to save the other.
Conjoined twins exist on the margins of our notions of
embodiment and individuality. They challenge the boundaries of medical, ethical
and legal possibility (and permissibility) and their existence poses a threat to
entrenched social values about the worth of lives that differ from the norm of
one individual, one body (Dreger 1998, Myser and Clark 1998). High profile
instances of the sacrificial separation of conjoined twins, from twins in
Philadelphia in 1977 (see Annas 1987) to
Re A (children) (conjoined twins:
surgical separation) [2000] 4 All ER 961, have highlighted the fact that
separation decisions seem to be reached on a case-by-case basis on their
perceived merits, which does nothing for the internal coherence of the reasoning
in the case – judges may agree on outcomes but for different reasons,
which presents a problem in the application of precedents – or for the
case's coherence within the law – a deserving outcome in one case
may cause tensions in related law. As is often said, 'hard cases make bad
law'.
When separation is considered, for example on the
grounds of medical necessity, we accept that a choice has to be made between
competing arguments. The leading UK case on separation, Re A, made such a
choice. The determining factor of that case was the court's interpretation
and application of the welfare principle. In this article, we argue that the
welfare principle was inappropriate for the determination of issues of this
kind: neither the content of 'welfare' nor the application of
welfare arguments in competition situations has been settled or fully explored.
We contend that the judgments in Re A leave much to be desired, and do
not even begin to approach the decisive status to which they aspire. We maintain
that it is possible to attempt an answer to the dilemma of separation of
incompetent children, but only by employing a rigorous, comprehensive and
coherent argument that explores the relationship between law and morality, and
operates from the starting-point of an objective moral theory. The relationship
between law and morality must be explored because rival conceptions of law have
different relationships with morality, and thus may result in different outcomes
on a given question. Whatever moral theory is employed needs to be objectively
justified if it is to establish its mandatory applicability to a question. We
cannot claim to offer a solution that will streamline the law, but suggest that
it is important first of all to focus on the substantively right decision before
being concerned with uniformity of the case-law.
This paper is in five parts. After an admonition in the first section, in
the second we highlight certain assumptions about separation, and then consider
questions that need to be addressed. We identify three levels of inquiry (the
application of rules; reasoning where no directly applicable rule exists;
and conceptual questions) which a thorough consideration of separation requires.
Not all of the issues that arise from separation can be approached in a paper
of this size: we restrict ourselves to welfare (other questions are raised
by Re A: for the criminal issues, see Huxtable 2002, McEwan 2001, Michalowski
2002, Tausz and Smith 2001 and Uniacke 2001; for the human rights issues Black-Branch
2001 and Clucas and O'Donnell 2001; and for the question of who decides see
Clucas and O'Donnell 2001 and Michalowski 2001). We limit ourselves to separations
similar to Re A. The third section of this paper is taken up with a
discussion of Re A as the leading UK case on conjoined twins, but does
not seek to be a definitive analysis of all the legal issues raised. The penultimate
section examines Ward LJ's claim in Re A that the court was a court
of law, not of morals. The final portion of the paper is the most ambitious,
and outlines and attempts to implement a logical framework for the resolution
of ethical issues, with a consideration of the three levels of inquiry previously
identified. Our framework is one of legal idealism founded on moral objectivism,
and for this we owe an obvious debt to Alan Gewirth, Deryck Beyleveld, Roger
Brownsword, and Shaun Pattinson. Our conclusions on separation in the instance
of Re A match those of the Court of Appeal, but our reasoning is very
different: the right decision was reached for the wrong reasons. We contend
that the process by which an outcome is reached is at least as important as
the outcome itself in any given case, and even more important when the reasoning
from one case is applied subsequently. We aim to provide a practical and rigorous
framework for the resolution of other cases of this kind.
1. A cautionary point
In the publicised cases to date, there has been a presumption on the part
of the doctors and judges involved that where it is possible to separate conjoined
twins with a good chance of at least one survivor, this ought to be done (Sheldon
and Wilkinson 1987, Thomasma and Muraskas 1996).
We concur with
Annas (2001
, p.1108) that '....once the twins are separated verbally
it is only a matter of time before they are separated surgically': it becomes
assumed that separation
ought to take place. We believe that at least
where there is no medical necessity to separate, the impetus for separation
results from
societal constructs of what is acceptable (Myser and Clark
2001 p 47; Dreger 1998). Robert Walker LJ's discussion in
Re A
about restoring to Mary her bodily integrity (
[2000] 4 All ER 961, at 1066 and
1069) provides a striking example of the puissance of these social constructs:
conjoined twins are seen as not 'normal', therefore they
ought to be
made to resemble the norm. For example, during the writing of this paper, there
was much speculation over the fate of conjoined twins Natasha and Courtney Smith
who were born to a Hertfordshire couple, in April 2002. They shared a heart
and liver, and the parents and doctors were agreed that they should be separated.
The heart, which was situated a little further to Natasha's side of the
conjoined body, would be allocated to Natasha, who was described as the dominant
twin. Natasha was thus selected as the survivor and Courtney as the sacrifice.
The doctors and the parents seemed to share the assumption that separation should
take place (despite the lack of success in previous cases of shared hearts),
an assumption arguably reinforced by the highly publicised decision in
Re
A . Separation was subsequently decided against after a revised opinion
that neither twin would be likely to survive.
The motives driving this argument may be exemplary
– twins may be separated in order to enjoy a conventional life and to
avoid discrimination against their difference (although in Mary's case,
separation merely made her fit a conventional coffin) – but we are
unconvinced that fears for twins' welfare justify such a step. Chang and
Eng Bunker, the original Siamese twins, appear to have lived full and happy
lives despite their difference, as do other conjoined twins (Raffensperger
2001). In centuries past women have suffered serious discrimination on the
grounds of their sex, but we think no one would argue sincerely that women ought
to have been killed, or to have been surgically altered in order to pass as men,
to spare them this trauma. Where there is discrimination, this must be knocked
down rather than shored up. Separation is never without risk, whether medical or
psychological, and prejudice, albeit well-meaning prejudice, must not play a
part in the decision. We query the urge to make conjoined twins conform to
societal norms. For societal norms to be adequate criteria of moral
permissibility, an argument must be adduced that establishes them as such. We
are not convinced that this is possible. In section 5 below we give our account
of an argument for moral permissibility that is based on an argument for
necessary truth rather than conventional wisdom.
2. Separation questions
The impetus for judicial consideration of separation
tends to be perceived medical necessity. The court's dilemma is most acute
when the rights or best interests of one twin are perceived to be in conflict
with those of the other (of which more below). The paradigm of the separation
dilemma is Re A, where both twins were expected to die within a few
months (a few years at most) if remaining conjoined. One had a very good chance
of independent ('normal') life if the twins were surgically
separated, which operation would cause the death of the other twin. We examine
Re A in more detail in section three below. We cannot hope to address all
the questions implicated in separation, and we restrict ourselves in section 5
to the rights and wrongs of the separation of conjoined twins where the survival
of one twin by separation is an alternative to proximate death for both.
2.1 Does being conjoined make a
difference?
If a person has rights by virtue of being a person
(whatever this may mean), then a person who is conjoined will also have rights.
Are conjoined twins one entity with one bundle of rights, or are they two
distinct persons? If they are distinct persons, may there be an important
difference in the rights that it is intelligible for a conjoined person to
exercise? Physical possibilities that exist for singletons – such as
privacy – become much more problematic for conjoined twins, as it is not
possible to be conjoined and physically alone. For example, if we accept that a
right to privacy exists, to speak of a right to privacy in the sense of a right
not to be with or observable by another person against one's will is
nonsense in the case of individual conjoined twins. Other rights might have to
be reconsidered also.
It is important to note that even if the content
of a conjoined right changes – by this we mean the particular
instantiation of a right in specific circumstances – this does not affect
the weight of the right in question. We are used to variety in the
instantiations of a right to autonomy – for example, X's right to
prefer tea and Y's right to prefer coffee when they both desire a hot
drink – but may need to remind ourselves that variety obtains with respect
to other rights whose content usually seems fixed.
2.2 The nature of conjoined twins
Conjoined twins are monozygotic twins, where a
fertilised egg has begun to divide, but the process has stopped before total
division occurred. Discussion of conjoined twins frequently begins by exploring
the extent to which conjoined twins are one person or two (e.g. Sheldon and
Wilkinson, 1997). Perhaps the more fundamental debate is the extent to which
personhood depends on or is distinct from embodiment (Myser and Clark, 1998;
Wasserman, 2001; Munro, 2001; Kaveney 2001), although Finnis comments negatively
on the prevalence of the mind-body dichotomy (1993, p334). We content
ourselves here with pointing out that conjoined twins can be seen as inhabiting
an intermediate category of embodiment between one and two, yet exist in a
society which seems unable to contemplate with equanimity the degree of
blendedness and interrelatedness which conjoined twins exhibit, or the idea that
such intermediate categories may exist or need to be constructed. The current
rules by which society is regulated, being focussed on individualised rights,
have difficulty in accommodating these categories of interrelatedness and
interdependence (Sheldon and Wilkinson 1997 p151; Munro 2001).
Conjoined twins exist outside society's perception
of the normal, and are frequently described in terms which emphasise their
abnormality, or suggest that their development is not natural (the judgments in
Re A provide an excellent example, and see also the acute deconstruction
of television documentaries by Myser and Clark (1998)). The intuitive response
is often that conjoined twins are two individuals whose development did not
proceed 'properly': that their conjoined state is a mistake which
ought to be corrected: that their normal development should be achieved
by other, surgical means. Hence, conjoinment is seen as a medical condition
that requires treatment, and the indicated treatment is invasive surgery to
complete the process of splitting that was halted in the womb. Conjoined twins
do deviate from the norm, but the language of abnormality tends to bring
perjorative implications: deviation from the norm does not necessarily
require that conjoined twins be reshaped or reconstructed to better fit
the norm.
The preference for separation is based on assumptions
that being different is not in children's interests. But it is clear that
(at least some) adult conjoined twins are happy in their conjoined lives. They
feel that conjoinment does not bar them from experiencing aspects of
'goods' of human existence, such as marriage and parenthood. They
see no need for separation in adulthood: their conjoined lives are normal to
them. Adult conjoined twins who have not been separated are known to express
their contentment with their lives and their desire to remain conjoined
(Raffensperger 2001). If we regard conjoinment as a developmental abnormality
that should be corrected, then how much respect are we showing to the lives of
those who are born and live conjoined? We may be unable to comprehend or
accommodate their embodiment, but that does not justify our
'carving' them to fit into our mould (Myser and Clark, 1998, p47).
An emphasis on the appropriateness of separation simply reflects our inability
to accept disability and difference and to concede that there may be equal value
in lives that exist outside our conceptions of the normal.
Our perceptions of a child's physical and
emotional well-being (how rights to or interests in well-being are instantiated)
are constructed around certain normative values. Conjoined twins exist outside
many of those norms. It seems plain that we cannot apply the same normative
standards of well-being to conjoined twins as to singletons.
2.3 Morality and legality
If answers to separation questions have any pretensions
to definitive status (and answers to separation questions ought to have
pretensions to definitive status, as persons' well-being and lives may be
radically altered by them), it should immediately be evident that they must seek
moral and legal justification.
Morality and moral principles in general, are to be
understood as being located in a particular place within practical reason
(reasons for action). Moral principles have the following characteristics: they
are justificatory, that is, they provide reasons for action rather than
excuses; they are aimed at guiding the actions of the recipients of the
principle; they are addressed to persons other than the originator of the
principle; they are concerned with the rights or interests of those other than
the originator of the principle, and they are categorical, that is, obligatory
irrespective of the desires of the recipient of the precept, and having a force
that overrides non-moral principles. (For further discussion of the delineation
of morality, see Gewirth 1978, pp 1-3 and Beyleveld and Brownsword 1994, p 126.)
A moral justification will provide a reason why a course of action ought or
ought not to be followed. We contend that whether or not a proposition is
labelled 'moral' is irrelevant: if it aims to be justificatory,
action-guiding, other-addressing, other-regarding and categorical, then it is a
moral proposition. In 5.3.b below, we provide an additional reason for subsuming
separation questions within moral discourse: it will be seen that if a question
is within the sphere of practical reason (reason for action), it is subject to a
supreme moral principle, and an action may be morally permissible, morally
impermissible, or morally optional. In sum, both the characteristics of
judgments made about separation, and the situation of separation questions
within practical reason, make separation judgements subject to moral scrutiny
(whatever this may entail).
With regard to law, for the moment it will be enough to
define law as 'the enterprise of subjecting human conduct to the
governance of rules' (Fuller 1969, p 96). What precisely this entails will
hinge upon the nature of the connection between law and morality. Legal
positivists will deny that there is anything other than a contingent connection
between law and morality, whilst legal idealists will be committed to the view
that there is a conceptually necessary connection between law and morality. For
the moment we do not enquire what, if anything, is required by that enterprise
(this is taken up in section 5, below). In the limited present sense of
'law', an answer to questions of separation must be justified in law
because the law consists of the rules that regulate our lives.
2.4 How far can examination of domestic and
international positive law determine the legal status of the sacrifice of a
conjoined twin? The three levels of inquiry.
Legal inquiry on the subject of sacrifice comprises
different levels of investigation. The first and second levels will be the most
familiar to lawyers who confine their scrutiny to the rules that are posited for
enforcement in the polity in which we live, but long-term acquaintance is not
the only, or the best criterion, to delimit our study.
The first level of inquiry consists in an exploration of
the rules. Are there rules that prohibit the intentional killing of a conjoined
twin? If a rule exists that has direct application to the case in hand, then an
answer to the positive legal status of sacrifice of conjoined twins can be found
easily. How much influence is had by international law and convention
untertakings becomes merely the technical question of positive legal
effect.
If, however, there is no clear rule concerning the
killing of conjoined twins, then the second level of investigation must be
commenced. If there are rules concerning the killing of (non-conjoined) persons,
do these rules apply in an identical fashion to conjoined twins? Lawyers will be
familiar with the techniques of argument by analogy, which could be used in
support of an equal prohibition on the killing of conjoined persons as
non-conjoined persons. However, the capacity to suit one's arguments to
one's conclusions, the ability to argue towards a pre-determined goal, is
of no assistance when we are in doubt as to the answer.
Do rules against homicide apply in the same way to
conjoined twins as to other persons? A legal positivist may consider the
law to have 'run out' when there is no direct rule to apply to a
particular circumstance. In such a case, a judge must use her discretion to make
law. The answer to the question 'what does the law say about the sacrifice
of a conjoined twin?' becomes whatever a judge says it is. In contrast,
Ronald Dworkin (1998), who can be understood as a type of legal idealist, denies
emphatically that the law can ever run out: there are legal principles (albeit
not always express principles) that lie behind the rules, which, on careful
study and interpretation, will yield the answer. A judge, according to Dworkin,
may find the law, but never has the strong discretion to make the
law. It can be seen that the question of what is the law in a hard case where
there is no clearly relevant rule leads one on inexorably and logically to the
third level of investigation: the concept of law.
The debate over the concept of law – what is law
– does not only become a live issue in a hard case, but this is not always
immediately apparent to the non-lawyer or the practitioner or the
non-theoretician. When one is faced with rules enforced by political power with
the label 'law', it is all too easy to assume that the label fits
the conception. (We do not consider all of the points related to the concept of
law debate here: there is, for example, the important question of what
obligation there is to comply with an unjust rule. See Beyleveld and Brownsword
1994 for discussion of this, and many other questions.) It should be clear,
however, that even if one is used to conventional acceptance of what is
law, this concept of law nettle must be grasped once conventional rules
give no clear answer. One's conclusion to the concept of law question
– whether there is no necessary conceptual connection between law and
morality (legal positivism) or whether there is a necessary conceptual
connection between law and morality (legal idealism or natural law) – will
determine one's approach to the law, and the law in a hard case (See
sections 4 and 5 below).
2.5 Whose moral theory, and why?
The question of separation, where one conjoined twin is killed to save another,
is a moral as well as a legal question (see 2.2, above). Whether one takes
the view that a judge must make a (moral) decision when the law runs out,
or that the law cannot run out and is based around a moral principle or set
of principles, one must inevitably inquire as to whose (moral) principle
should determine the outcome, and why should this particular theory
be used. If there is no way of adjudicating between competing (moral) principles,
there can be no right answer or even preferable answer when asked should
we separate conjoined twins. We resume on this point in section 5, below.
Top | Contents | Bibliography
3. Re A (children) (conjoined twins):
3.1 An overview of the case
With these questions in mind, we turn to the apparently
definitive answer provided by the Court of Appeal in Re A (2000). The
judgments exemplify the tangle of ethical and legal issues involved in
sacrificial separation, and illustrate the potential for inconsistency which
flows from what seems to be result-oriented decision-making. We summarise key
aspects of the case here but we are not seeking to provide an exhaustive
analysis of all the points on which the judgments can be criticized: for
detailed commentary on the judgments, see Clucas and O'Donnell (2001),
Uniacke (2001), Harris (2001), McEwan (2001), Michalowski (2001, 2002) Hewson
(2001), Wasserman (2001), Annas (2001) and Gillon (2001).
The case concerned conjoined twins identified as Jodie and Mary (real names
respectively Gracie and Rosie) who were born in August 2000. Their parents,
Michelangelo and Rina Attard, lived on the Maltese island of Gozo and had come
to the UK, to St Mary's Hospital in Manchester, for medical expertise that was
not available in their home country. The twins were joined at the pelvis but
had separate vital organs, with the main exception of the liver and bladder.
Due to the nature of the join between them it was relatively easy to regard
each child as possessing a separate heart, lungs, two arms, two legs etc, but
the twins shared a circulatory system. Their circulation was joined at the main
artery, and crucially, Mary's heart and lungs were not functional. The shared
artery meant that the heart attributed to Jodie was supplying oxygenated blood
to both babies. The court (and most writers) had no difficulty in allocating
body parts between the twins and throughout the judgments (and commentaries
on them) the organs are referred to as belonging to one or other baby. The functioning
heart is thus described as Jodie's, rather than as a shared organ. The ways
in which the twins are described and the consequences of such description are
significant.
(1)
The medical evidence was clear. Mary's heart and
lungs were not functioning: she had not been able to breathe for herself and had
she been born a singleton, she would not have survived birth and could not have
been resuscitated. In addition, her brain function was significantly impaired.
Jodie's heart was sustaining Mary, but it could not do so infinitely. As
the twins grew, the strain of supporting the conjoined body would lead to heart
failure, and would cause other complications before death. It was anticipated
that when Jodie's heart failed, she would die first, followed shortly by
Mary. If the twins remained joined, then both would die, within a period of time
estimated as between six months to a few years. If the twins were separated,
medical opinion was that there was an excellent chance that Jodie would survive,
and, with reconstructive surgery, could lead a relatively 'normal'
life. However, separation would mean clamping and severing the shared
circulatory system and as a result Mary would die. Although the question of
placing Mary on life support was raised at an earlier stage, none of the doctors
or judges involved treated this as a realistic possibility, undoubtedly
influenced by the degree of brain damage present (although McEwan questions some
of the reasoning here: 2001, pp 254 and 258).
Separating the twins from each other would preserve
Jodie's continued life, but would prematurely end Mary's. On the
other hand, leaving the twins conjoined would cause the proximate deaths of
both. The other possible option of separating if an emergency situation
developed was discounted as posing too high a risk to Jodie and diminishing the
likelihood of a successful outcome for her. The case therefore starkly
encapsulates the ethical and legal dilemmas involved in sacrificial separation,
and the questions outlined earlier.
At first instance, handling the application as an
emergency hearing, Johnson J had held that Mary's life would be short and
hurtful to her and to prolong it would be 'very seriously to her
disadvantage'
(cited by Ward LJ,
[2000] 4 All ER 961 at 988).
Mary's interests were paramount and separation would be in her best
interests. He affirmed that if separation were a positive act, not an omission,
it would not be lawful and could not be made lawful, however, he held that
separation would be an omission not an act. He decided that separation would be
an interruption or withdrawal of the blood supply, analogous to the withdrawal
of feeding and hydration in the
Bland case, and would therefore be lawful
(
Airedale NHS Trust v Bland [1993] AC 789).
3.2 The Court of Appeal judgments
The Court of Appeal, consisting of Ward, Brooke and
Robert Walker LJJ, delivered more considered judgments, which all concluded that
separation would be lawful, albeit for different reasons.
The judges took the view that they must first ask
whether they could override the parents' refusal of consent, a question
which they sought to answer by the use of existing principles on consent and the
welfare principle. They then considered whether Mary's death would be an
unlawful killing, i.e. whether it would be intended and whether there would be
any applicable defence. The case thus ranged across a number of principles
central to issues in medical, family and criminal law, but the judgments are not
unimpeachable (although we do not consider all the issues involved in this
paper).
All three judges agreed that they were bound by the
welfare principle in s 1(1) of the Children Act 1989 and the idea of best
interests: that the court's paramount consideration was the welfare of the
children. Ward and Brooke LJJ held that the best interests of Jodie and Mary
were in direct conflict, but that this could be resolved by balancing the
benefit to Jodie against the harm done to Mary. They held that the benefit to
Jodie outweighed the harm to Mary, who would die in any event when Jodie's
heart failed, and thereby overruled the parents' refusal to consent. By
contrast, Robert Walker LJ agreed with Johnson J at first instance, holding that
the separation was in the interests of both children.
As to whether Mary's death would amount to an
unlawful killing, there was less agreement. Ward LJ held that her death would be
intended but would not be murder because of quasi-self-defence. Brooke LJ held
that Mary's death would not be murder because there was a defence of
necessity. Robert Walker LJ held that Mary's death would not be
intended.
We consider all three judgments to be flawed. We make
the following criticisms, which we will support in detail in the sections that
follow. Not only are the judgments mutually contradictory, but they are also
internally inconsistent in many places. They are clearly based upon a range of
values (particularly values about conjoined or separated life) which were
neither argued nor properly justified. Their treatment and application of
established principles of law can be strongly criticised and in their ostensible
hope to justify their desired outcome, they overturn established principles of
criminal law without sufficient argument or reason. They claim that there is no
place for moral reasoning in the resolution of this complex (and undeniably
moral) dilemma, but the judgments make clear use of certain moral arguments, in
the absence of a properly reasoned framework.
Referring back to three levels of enquiry which we
outlined previously in section 2.4 above, it is clear that, at the first level
of enquiry, there are no rules which specifically relate to conjoined twins nor
to the killing of one to save another. At the second level of enquiry, there are
rules that relate to the medical treatment of non-conjoined children, and to the
killing of non-conjoined persons. Could these rules and principles be used to
resolve the issue before the court, namely the treatment or killing of conjoined
children? The court quite clearly claimed that this was the level of inquiry
with which it was engaged: 'This court is a court of law, not of morals,
and our task has been to find, and our duty is then to apply the relevant
principles of law to the situation before us - a situation which is quite
unique' (Ward LJ
[2000] 4 All ER 961 at 969). However, it is equally
clear that they were in fact engaged in consideration of moral issues: see 2.3
above.
3.3 The welfare principle
Our discussion from hereon will focus on welfare and the
balancing of the twins' best interests. The Court of Appeal began its
search for applicable rules and principles by turning to the principle which
underpins the modern law relating to children: the paramountcy or welfare
principle. When the court's inherent jurisdiction is invoked, its first
and paramount consideration is the well-being, welfare or interest of the child
(Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206). In
addition, the Children Act 1989 contains the statutory formulation that
'when a court determines any question in respect to (a) the upbringing of
a child .... the child's welfare shall be the court's paramount
consideration' (s1(1) Children Act 1989). This essentially means that this
is the court's only consideration (Freeman 2001, p 276). The rhetoric of
welfare has thus become the touchstone of almost all areas of the law dealing
with children. However, we argue that the application of the welfare principle
fails to resolve the dilemma of whether sacrificial separation is morally and
legally permissible. The welfare test is not an appropriate or sufficient
mechanism for resolving competing rights to life; nor should the right to life
be subordinated to a subjective principle of welfare (and see Harris 2001, p
229).
3.3.a The meaning and content of welfare
The concepts of 'welfare' and 'best
interests' invariably govern cases concerning children. Significantly,
these concepts, which are never clarified, are presented as objectively
determinable and shared norms.
Although Ward LJ purports to discuss the meaning of the
welfare test, his discussion of the meaning of best interests is limited to two
short quotations (
[2000] 4 All ER 961, both at 994) from recent authorities
which do nothing to address the content of welfare or the way in which the
rhetoric of welfare is arguably used to validate or rationalize a desired
outcome.
'Best interests are not limited to best medical
interests.' (Butler-Sloss LJ in Re MB (an adult: medical treatment)
[1997] 2 FCR 541 at 555)
and
'In my judgment best interests encompass medical,
emotional and all other welfare issues.' (Dame Elizabeth Butler-Sloss P in
Re A (medical treatment: male sterilisation) [2000] 1 FCR 193 at 200).
The content and limits of 'best interests'
are never clearly defined. As Dewar, among others, points out, the concept of
welfare is not susceptible to legal definition with the clarity or objectivity
normally associated with (or claimed by) legal principles (1992, p. 381), but
crucially it is usually discussed by judges as if it is, and as if that
definition is known and shared. We suspect that the language of welfarism is a
rhetoric which enables a system to protect and promote those values to which it
wishes to adhere most strongly. That rhetoric has long been exposed to criticism
on the grounds of its indeterminacy and dependence upon the
decision-maker's own value judgments (Mnookin, 1975, p.226, and see Reece,
1996, as an example). These value judgments are frequently revealed through the
judicial use of language, as can be seen in Re A itself. Here, the
judgments are clearly influenced by perceptions of 'normality', and
the value (or lack of value) of a conjoined life.
Conjoined twins provide an excellent example of the
problem associated with the use of the welfare principle: our perceptions of
children's well-being are constructed around certain normative values.
Conjoined twins exist outside many of those norms and it may be that those
normative standards of well-being cannot necessarily be applied to conjoined
twins. The Court of Appeal, however, judged the twins' welfare and
well-being entirely by reference to standards of the normal existence and
development of non-conjoined persons.
3.3.b The application of the welfare principle to
Jodie and Mary
Jodie's best interests
The application of the welfare principle to Jodie seems
relatively unproblematic. Jodie's life expectancy, joined to her twin, was
short, between a few months or a few years. An elective separation held a high
chance of survival for Jodie (around 94%), and a good prognosis for
Jodie's post-operative life, although it was possible that she would need
further surgery. A life along the lines of the worst outcome would have
inconveniences and unpleasantness, particularly in view of the remote situation
of the parents' home. There was no indication that her intellectual
development would be other than normal and it was anticipated that there would
be no adverse psychological consequences resulting from the separation. By
contrast, an emergency separation would carry much greater risks for Jodie. If
the twins remained conjoined, the strain of providing a blood supply for both
herself and her sister would ultimately cause Jodie's death through heart
failure: Jodie would predecease Mary, thereby bringing about Mary's death.
Postponing any separation in the hope of Mary's death occurring first and
an emergency separation taking place at that point was therefore not felt to be
a viable option.
Considering only Jodie's interests, elective
separation seemed the best option, and Johnson J found that:
in medical terms Jodie's life would be virtually as
long as and would have the quality of that of any ordinary child... For Jodie
separation means the expectation of a normal life...(cited in Ward LJ's
judgment, [2000] 4 All ER 961, at 988).
The implications of this view are clear: if separated
from her twin, Jodie has a good chance of a 'normal' life, and
therefore separation is in her best interests.
Ward LJ, considering the appeal against Johnson
J's judgment, considered that:
Far from being plainly wrong, Johnson J was in my judgment
plainly right to conclude that the operation would be in Jodie's best
interest. (ibid., 996).
Ward LJ's judgment placed considerable emphasis
upon the quality of Jodie's post-operative life and the relative normality
that would be achieved, and both Brooke LJ and Robert Walker LJ
agreed.
Mary's best interests
It was accepted by all the judges in the case that the
outcome of the operation to separate would be Mary's death, although there
was some uncertainty about whether that outcome would be 'intended'
in the context of criminal culpability.
Johnson J refers to Mary's state as
'pitiable' (ibid., 988) and his description of Mary's
condition is couched in emotive language. The medical witnesses could not be
certain of the extent to which Mary registered either pleasure or pain. Despite
this, and despite evidence that Jodie would be unable to learn to move around
while attached to Mary, Johnson J was influenced by the prospect of Mary being
in pain as Jodie began to gain mobility and dragged her around. He concluded
that:
'...the few months of Mary's life if not
separated from her twin would not simply be worth nothing to her, they would be
hurtful... To prolong Mary's life for these few months would in my
judgment be very seriously to her disadvantage' (ibid.,
988).
He therefore held that separation would be in
Mary's best interests.
Although Ward LJ disagreed with Johnson J's
findings and conclusion here, his judgment is phrased no more neutrally:
'(i) I agree with the judge's assessment: one pities Mary because her
position is utterly dire for she exists pathetically on borrowed time'
(ibid., 997).
Ward LJ holds (ibid., 1004) (and Brooke LJ agrees) that
separation is not in Mary's best interests:
The only gain I can see is that the operation would, if
successful, give Mary the bodily integrity and dignity which is the natural
order for all of us. But this is a wholly illusory goal because she will be dead
before she can enjoy her independence and she will die because, when she is
independent, she has no capacity for life. The operation is not capable of
ensuring any other improvement to her condition or prevent any deterioration in
her present state of health. In terms of her best health interests, there are
none. To be fair to the hospital, they do not pretend that there are (ibid.,
998).
In a stark contradiction, the obvious inconsistencies in
Johnson J's judgment did not prevent Robert Walker LJ from agreeing with
his conclusions and finding that the proposed operation, which he agreed would
be an invasive act which would end her life, would be in Mary's best
interests:
even if it were assumed that Mary is no more capable of
feeling pain or discomfort than she is of any pleasant sensation or emotion, it
is hard to see any benefit to her from continued life
(ibid.,1057).
Robert Walker LJ also clearly laid great stress upon the
bodily integrity argument. Despite Ward LJ's earlier comments about this
being a 'wholly illusory goal', Robert Walker LJ held that
'the operation would give her, even in death, bodily integrity as a human
being' (ibid., 1070). This is a highly paternalistic and value-laden
decision which implies that Mary's 'right' to a separated body
outweighs her interest in her own continued existence.
What all the judges fail to accept is that Mary and
Jodie already have bodily integrity: they have a conjoined body (see Watts,
2001, Harris, 2001, Hewson 2001). The judges identify conjoined bodies as
lacking in both integrity and dignity, clearly only able to conceive of
integrity and dignity as belonging to separated bodies. They fail to treat the
twins with the respect that they insist elsewhere (e.g.
[2000] 4 All ER 961, 966
and 1054) is due.
The value of welfare
There can hardly be a clearer illustration of the
shortcomings of the welfare principle than the judgments in Re A. Two
judges (Ward LJ and Brooke LJ) held that the separation was not in Mary's
best interests, since it would cause her death. Yet, using exactly the same
principle, the two remaining judges (Johnson J at first instance and Robert
Walker LJ in the Court of Appeal) held that separation – i.e. death
– was in Mary's best interests, and one leading commentator
(Freeman, 2001) agrees. What is considered to be in Mary's (or
Jodie's) best interests depends purely upon the values placed upon the
factors under consideration. The use of the welfare principle to resolve life or
death dilemmas cannot be justified if it is so subject to the vagaries of
judicial values and preferences.
3.3.c When best interests conflict: the limits of
paramountcy
Re A exposes a further flaw in the welfare
principle: the emphasis on paramountcy means that it is incapable of resolving
conflicts between the welfare of different children. The court is concerned with
two children, whose interests appear to conflict. The welfare of both cannot be
paramount.
By holding that separation was in Mary's best
interests as well as in Jodie's, Johnson J at first instance and Robert
Walker LJ in the Court of Appeal managed to neatly sidestep the difficult issue
of balancing the interests of two children, both of whose welfare is paramount
under the Children Act s1(1). By refusing to distort their interpretation of
Mary's best interests, Ward LJ and Brooke LJ, however, had to deal with
the contradiction. In the absence of statutory rules, the Court of Appeal turned
to two previous cases that had addressed this problem.
Birmingham City Council v H [1994] 2 AC 212
concerned a contact application by the 16 year old mother of a 1 year old child
in care. In that case, the House of Lords avoided the contradiction inherent in
s1(1) by holding that only the welfare of the baby was paramount, since only the
baby was the subject of the application before the court. This clearly could not
be applied to the situation in
Re A, so Ward LJ and Brooke LJ turned to
the Court of Appeal judgments ([1993] 1 FLR 883). The Court of Appeal had
decided that the welfare of both mother and baby were in issue and fell within
the paramountcy principle. The Court had argued that where the interests of the
children were each to be treated as paramount but were directly opposed to each
other, the court must conduct a balancing exercise and reach the decision which
represents the least detrimental alternative overall. In the words of Evans LJ
in the Court of Appeal in the
Birmingham case, the court must 'have
regard to potential detriment for one in the light of potential benefit for the
other' (ibid., 899).
This line of reasoning was followed in Re T and E
(proceedings: conflicting interests) [1995] 1 FLR 581. Here, the Court of
Appeal was required to decide upon residence applications for the three children
of a family, whose interests conflicted. The court again took the view that it
must balance the interests of the children against each other to achieve the
least harm overall.
Ward LJ therefore sought to carry out such a balancing
exercise between Jodie and Mary. He stressed that Mary was incapable of
independent life; that had she been a singleton she would have been stillborn or
died shortly after birth; that she was in any event doomed to die within a few
months or years at the very most. By contrast Jodie's position was very
different: she was capable of independent life; it was anticipated that,
if separated, her independent life would be of a good quality and reasonable
duration; but if not separated, she would inevitably die as a result of her
physical attachment to Mary. In short, Mary could not be saved from a proximate
death, but with a high degree of certainty (and with a prognosis of a near
normal life), Jodie could. The harm to Mary – i.e. death, which could only
be postponed and not averted – was held to be clearly outweighed by the
benefit to Jodie of continuing and near-normal life. On this basis, both Ward LJ
and Brooke LJ held that the separation was justified, although they
distinguished this from the question of whether it could lawfully be carried out
without incurring criminal liability (see 3.4 post).
The Court of Appeal concluded that Jodie's
(potential) long term continued life was worth more than Mary's inevitably
short life. However, it is clear from the way in which the girls were discussed
that this valuation was not simply a quantitative one based on their relative
life expectancies: the judgments repeatedly refer to the near normal quality of
life which Jodie is expected to enjoy, as contrasted with the poor quality of
life which Mary enjoys and would continue to enjoy. The balancing exercise which
has been carried out depends upon value judgments about the quality of life,
which detract from the absolute nature of the right which is at stake: the right
to life.
3.3.d The value of life
At the heart of
Re A lies the proposition that
the life of one person morally should, or legally may be sacrificed to save the
live of another. The court made general statements about the fact that Mary and
Jodie were both living persons possessed of equal rights to life (
[2000] 4 All ER 961, e.g. at 1001 and 1026), but Ward LJ's analysis of the way in which
life should be valued, which is the most comprehensive, draws heavily upon
Airedale NHS Trust v Bland [1993] AC 789 and specifically upon
John Keown's subsequent (1997) exposition of the possible approaches to
valuing human life. We argue that the court's interpretation of the
sanctity of life approach resulted in an appraisal of the relative
worthwhileness of the twins' lives (in which Mary lost), rather than an
assessment of whether the treatment proposed was worthwhile (which is what the
court purported to judge).
Before considering the coherence of the sanctity of life
approach and Keown's distinctions generally, some mention must be made of
the applicability of Bland to Re A. As Ward LJ recognised, Mary
was not receiving treatment in the sense that Tony Bland was:
Mary is not receiving treatment (or any substantial
treatment) at the present time. Such care as she receives in hospital will of
course prolong her life but there is no question of withdrawing that care or
that treatment. What is under consideration is the active invasion of her body.
That will not prolong her life. It will terminate it. ([2000] 4 All ER 961, at
1003).
If Bland as a factually analogous precedent is
unsuitable, is its reasoning on the sanctity of life applicable to the twins? It
was necessary in Bland to distinguish between evaluating the
worthwhileness of treatment and the worthwhileness of the patient's life:
their Lordships were quite clear in stating that to say that Anthony
Bland's life was not worthwhile would be to 'cross the
Rubicon', on the other side of which lies euthanasia. If life were not
sacred, then it would be permissible to kill those whose lives were deemed not
worth living.
The sanctity of life is one of three approaches on a
continuum identified by Keown (1997): vitalism, 'sanctity of life'
and 'Quality of life' (his capitals). Keown defines vitalism as the
position that human life has an absolute value that must be preserved or
lengthened at all costs. 'Sanctity of life' is characterised as the
view that human life has intrinsic dignity that protects it from unjust attack:
the right to life is essentially a right not to be intentionally [and unjustly]
killed. Sanctity does not mean vitalism: rather than the preservation of life at
all costs, Keown argues that the sanctity doctrine accepts that 'in many
cases it is perfectly proper to withhold or withdraw life-preserving
treatment.... The sanctity principle holds that there can be no moral obligation
to administer or undergo a treatment which is not worthwhile' (ibid.,
485). He distinguishes the question of the worthwhileness of treatment from the
worthwhileness or value of the patient's life: the latter assessment is
argued to be the third approach of 'Quality of life', which focusses
on the worthwhileness of a patient's life rather than the merits of the
treatment. 'Were one to engage in judgments of the latter sort, and to
conclude that certain lives were not worth living, one would forfeit any
principled basis for objecting to intentional killing' (ibid., 485). Keown
claims that it is the principle of the sanctity of life on which English law
(with the anomalous exception of
Bland) is based (support for this was
most recently and explicitly provided in the
Pretty cases in the House of
Lords and the European Court of Human Rights,
[2001] UKHL 61 and
35 EHRR 1
respectively).
It is critical to Keown's reasoning on the
sanctity of life that decisions regarding medical treatment must focus on
whether the treatment is worthwhile, not whether the life is worthwhile.
Worthwhileness of treatment is explained in the following way:
A treatment may not be worthwhile either because it offers no
reasonable hope of benefit or because, even though it does, the expected benefit
would be outweighed by burdens which the treatment would impose, such as
excessive pain. (Keown 1997, 485).
Keown illustrates the distinction between worthwhileness
of treatment and worthwhileness of life with reference to two hypothetical
babies:
...Angela, a baby born with Down's syndrome and an
intestinal blockage. Her doctor informs her parents that the blockage can be
removed by a straightforward surgical operation and that, if it is not so
removed, Angela will die. The doctor and parents, judging that the treatment
will clearly benefit Angela by saving her life while involving only minimal
burdens, such as the usual discomfort associated with the operation, decide that
the operation would be worthwhile or proportionate and should be
performed.
'Contrast Angela with Bertha, a baby born with a
terminal illness which will inevitably lead to death in a matter of hours. Her
doctor informs her parents that, due to respiratory difficulties, she may stop
breathing at any time and asks whether they would like attempts at artificial
ventilation to be made should her breathing falter. Given that such efforts
could not hope to reverse Bertha's inevitable decline, and might impose
significant burdens on her, they decide against ventilation as it would be
disproportionate. (ibid., 485-6).
Had the judgements in these two scenarios been made on
the basis of a 'Quality of life' approach, then neither Angela nor
Bertha might have received treatment, on the basis that a life with Down's
syndrome and life with terminal illness were not worth living.
Keown criticises the reasoning in
Bland on the
grounds that a purportedly sanctity of life approach slips into a 'Quality
of life' approach. For example, tube-feeding was identified as
'treatment' in the case. Quoting Dr Keith Andrews (ibid., 492),
Keown points out that tube-feeding is extremely effective because it fulfils its
purpose: to provide sustenance for the body. Any judgment that condoned the
withdrawal of
tube feeding would have to be made on some other
ground: for example, that Tony Bland's
life was not worthwhile.
(Keown's disapproval of the reasoning in
Bland was so profound that
he concluded '
Bland rendered the law morally and intellectually
misshapen' (ibid., 503).) This elision between 'sanctity'
(legitimate) and 'Quality' (illegitimate) of life approaches is
maintained in Ward LJ's summing-up of their Lordship's reasoning in
Bland: 'vi) Since there was no prospect of the treatment [tube
feeding] improving his condition [pvs] the treatment was futile...'
(
[2000] 4 All ER 961, at 998, our insertions in square
brackets).
Ward LJ discusses Bland at some length (ibid.,
998 et seq.), and is aware of academic criticism of the case, including
Keown's. It appears throughout the majority of his discussion of Mary in
relation to 'sanctity of life' and 'Quality of life'
arguments that he has taken Keown's comments on board. He uses
Keown's words: the question is that of the worthwhileness of the
treatment, not the life. However, in his conclusion to how the balance between
Jodie and Mary's interests should be struck, we find the following
passage:
(ii) The question which the court has to answer is whether or
not the proposed treatment, the operation to separate, is in the best interests
of the twins. That enables me to consider and place in the scales of each twin
the worthwhileness of the treatment. That is quite a different exercise from the
proscribed (because it offends the sanctity of life principle) consideration of
the worth of one life compared with the other. When considering the
worthwhileness of the treatment, it is legitimate to have regard to the actual
condition of each twin and hence the actual balance sheet of advantage and
disadvantage which flows from the performance or non-performance of the proposed
treatment. Here it is legitimate, as John Keown demonstrates, and as the cases
show, to bear in mind the actual quality of life each child enjoys and may be
able to enjoy. In summary, the operation will give Jodie the prospects of a
normal expectation of relatively normal life. The operation will shorten
Mary's life but she remains doomed for death. Mary has a full claim to the
dignity of independence which is her human entitlement. In the words of the
Rabbinical scholars involved in the 1977 case in Philadelphia, Mary is
'designated for death' because her capacity to live her life is
fatally compromised. The prospect of a full life for Jodie is counterbalanced by
an acceleration of certain death for Mary. The balance is heavily in
Jodie's favour. ([2000] 4 All ER 961,
1010).
In this decisive passage, Ward LJ forgets that he has
already dismissed the separation operation as not treatment for Mary
– a fact that makes the balancing of treatment for both twins impossible.
He is correct that one must have regard to the actual condition of each person,
but only insofar as it is necessary to tell whether the treatment, being
directed at the condition (this is not the case for tube-feeding regarding the
improvement of pvs), would improve the condition (be worthwhile). When Ward LJ
talks of 'the dignity of independence which is her human
entitlement', a claim to which is incidentally nonsense on the grounds of
being impossible for Mary to realise whilst being alive, he makes the shift to
the valuation of the individual twins' lives, the step he regards as
illegitimate.
Ward LJ's analysis of the right to life and
sanctity of life is heavily influenced by his perceptions and values about the
conjoined state. The story he tells is one where an egg fails properly to
divide, resulting in conjoined rather than separated twins. In this story,
conjoined twins are a mistake of nature, and more specifically, we can see that
it is Mary who is to be regarded as the mistake. Mary should have been born as a
physically separate child, or so the reasoning runs: had she been born
separated, she could not have survived; she only survives because of her shared
connection with Jodie. Her life is 'unnaturally supported' (ibid.,
1011). By extension, it seems that Mary should not be alive. For Ward LJ,
Mary has the right to life, but she has no right to be alive, especially as it
is that very connection which will also cause Jodie's earlier
death.
Mary may have a right to life, but she has little right to be
alive. She is alive because, and only because , to put it bluntly, she sucks the
lifeblood out of Jodie. Mary's parasitic living will be the cause of
Jodie's ceasing to live. If Jodie could speak, she would surely protest,
'Stop it, Mary, you're killing me. Mary would have no answer to that
(ibid., 1010) (although Uniacke replies on her behalf: 2001, p
212).
Annas also offers hypothetical conversations between the
twins, which might be more altruistic.
Each twin might also, of course, consider the other twin to
be an integral part of herself, a view that would preclude separation. Any of
these hypotheses is plausible, but made up monologues cannot take the place of
legal analysis' (2001, p 1104).
Both Brooke and Robert Walker LLJ have the same ability
to mould the right to life into seemingly contradictory shapes. Both judges take
the 'Mary as mistake' idea to its ultimate conclusion: that
Mary's right to life is to a life in a form which they recognise and
value: separated and not conjoined (
[2000] 4 All ER 961, at 1061, 1066). Thus,
separation will give Mary the bodily integrity and dignity which they clearly
believe to be lacking in the conjoined state (ibid., 1052, 1069). As formulated
by the judges, this appears to be valued over and above Mary's right not
to be deprived of her life (and see Freeman 2001). Mary's life, and her
right to it, it is clear, is of virtually no value: she is
'self-designated for a very early death' (
[2000] 4 All ER 961,
Brooke LJ at 1051).
Throughout the case it was argued that the correct
approach to the valuation of life is the sanctity approach: a right not to be
intentionally deprived of life, rather than the vitalist approach, which would
include the preservation of life. If this approach were rigorously applied it
would in fact lead the court to the opposite outcome. What is proposed is the
perservation of Jodie's life at the cost of taking another life. The
strict application of principles of sanctity would appear to hold that
sacrificing Mary's life in order to ensure the continued preservation of
Jodie's is morally impermissible. The emphasis on worthwhileness of
treatment, which is used to support the claim that sanctity of life does not
require the preservation of life at all costs, is turned on its head in order to
support the claim that Mary's continued existence is not worthwhile, while
Jodie's is. Jodie's life has (through the consideration of welfare)
been valued more highly than Mary's, largely because it can more readily
be reshaped to conform to the norm.
Our conclusion on Keown's reasoning differs from
others: see e.g. Harris (2001, p. 225), where he writes:
Both Ward LJ and Brooke LJ approve of the following
authoritative version of the distinction [between the value of the treatment and
the value of the patient's life] by Lord Goff in the Bland case:
'[T]he question is not whether it is in the best interests of the patient
that he should die. The question is whether it is in the best interests of the
patient that his life should be prolonged by the continuance of this form of
medical treatment or care.' The distinction is equally spurious in both
the versions attributed to Keown and to Lord Goff because it articulates a
distinction without a difference.
It is indeed 'astonishing that anyone should
entertain this supposed distinction for a moment' (ibid). We agree with
Harris that Lord Goff's formulation is a Quality of life judgement by the
back door. But it is equally astonishing that a reading of Keown (1997) could be
thought to be advocating Lord Goff's approach.
It is not surprising that Ward LJ makes this shift from sanctity of life
to Quality of life once he has committed himself to 'balancing the worthwhileness
of the treatment'. The only way in which his dilemma can be resolved in Jodie's
favour is by preferring one child's life to the other. Keown's sanctity of
life approach cannot have any other result than being opposed to separation
in the case of Jodie and Mary: entirely the opposite conclusion to that of
Ward LJ and Bland (and see Beyleveld and Brownsword (2001, 262-3) for
a different discussion of Ward LJ's reliance on Keown). Our conclusion may
seem similar to Ward LJ's, but in fact is significantly different: our application
of the Principle of Generic Consistency, below, is a precautionary analysis
of the relative moral status of Jodie and Mary, and not an evaluation of the
quality of their lives. The evidence by which we judge non-arbitrary moral
status leads us to prefer Jodie's rights to Mary's rights in a situation of
unavoidable conflict: see section 5 below.
Top | Contents | Bibliography
4.1 A court of law, not of morals?
We identified earlier the strange proposition of the
court, that in deciding on the twins' separation, it was not deciding on a
moral (as opposed to a non-moral) issue. Ward LJ, in his leading judgment, was
determined to stress the point that 'this court is a court of law, not a
court of morals' (
[2000] 4 All ER 961, 969).
4.1.a Does 'morality' equate to
religion?
This claim by Ward LJ that the court is a court of law
and not of morals, seems in many ways an odd statement to make. Discussion of
causing the death of a person seems to be one of the clearest instances of moral
discussion. Perhaps though, the word 'moral' has restricted
connotations for Ward LJ. Perhaps by 'morals' he really meant
'religion'. If this is the case, then we find no fault with his
declaration that the court is not a religious court and that the case should not
be decided by reference to specifically religious principles.
4.1.b An attempt to exclude evaluation of the
decision?
Perhaps Ward LJ meant to exclude any possibility of
evaluating the moral rightness or wrongness of the court's decision. This
is a much more contentious enterprise. Either the debate on the separation of
the twins was a moral debate (concerned with providing a decision for or against
separation that was justified and categorical; aimed at guiding the actions of
the persons involved, and concerned with the interests or rights of the twins),
subject to a supreme moral principle (see section 5 below), or it was not. If
the debate was, as it is evident, the type of debate that is conceived of as
'moral', then it matters not what label Ward LJ wished to give it.
He cannot define his way out of criticism of the moral substance of the
court's decision.
4.1.c Ultra vires
One of the strangest consequences of Ward LJ's
declaration that the court is a court of law and not morals is to exclude the
court's competence to decide a moral debate. This debate is a moral as
opposed to a non-moral debate: the court claims not to have the competence to
decide a moral debate. The court, by its own admission, exceeded its
jurisdiction in pronouncing on the fate of Jodie and Mary.
4.1.d A conceptual claim: there is no necessary
connection between law and morality
There seem to be two more likely interpretations of Ward
LJ's words: the first relates to a particular theoretical position in the
concept of law debate considered here; the second could be merely an indication
that the court was concerned with a decision that was controversial as to the
substantive moral content, considered in 4.1.e below.
To make the strong claim that a court is a court of law
and not of morals is to deny that there is any necessary conceptual connection
between law and morality: it is to espouse the separation thesis of H. L. A.
Hart (1994). We propose to give a fuller account of our position in this debate
below. For the moment, it is sufficient to outline what must be proved if this
interpretation of Ward LJ's statement is to be anything other than
arbitrary.
To establish that there is no necessary conceptual
connection between law and morality, one must prove that a problem of social
order (law being the enterprise of subjecting human conduct to the governance of
rules) need not necessarily presuppose the governance of an overarching moral
principle (see Beyleveld and Brownsword 1994, especially chapters Three and
Four, for discussion of valid methodologies). Merely to assume the superiority
of legal positivism, as Ward LJ's statement seems to do, is to make an
arbitrary claim. We are not obliged to agree with this claim until it is proven.
If legal positivism is mistaken, and legal idealism is the superior theoretical
position, then the legal validity, as well as the moral validity of the judgment
is called into question.
If it was indeed Ward LJ's intention to make the
claim that there is no necessary conceptual connection between law and morality,
perhaps part of his motivation was to avoid the duty on the court to (at least)
attempt to come to the correct moral decision – a duty required by morally
objectivistic legal idealism, and one popularly linked to the idea of legal
idealism or natural law theory in general. A duty to (attempt to) arrive at a
correct moral decision is bound to be problematic if a judge's conception
of a correct answer to a moral question equates to a mere conviction, as seems
to be the case with Ward LJ.
4.1.e A controversial moral decision
It may be that Ward LJ did not intend to make a claim
about the concept of law, but instead wished to present the court's
deliberations as musings on a (non-moral) legal question in order to avoid
controversy about whether the court reached the substantively correct moral
position. This reading seems to be in conflict with his express conviction of
having made the right decision (
[2000] 4 All ER 961, at 998) that we
characterise as a moral rather than non-moral conviction. However, it may be
that Ward LJ meant simply that this was the right
legal decision on a
moral issue. This position is a) unconvincing (see 4.1.b, above), and b) reduces
to a stand for legal positivism when carried to its logical conclusion (see
4.1.d, above), but we need not suppose that this is what Ward LJ
intended.
Moral convictions and moral principles habitually are
regarded by those who possess them as self-evident unproblematic truths, until
there is conflict between rival positions. For the majority of people, it is
simply obvious that murder is morally wrong, and since no mainstream moral
principle opposes this view, the grounds for its claim to veracity remain
unchallenged. But when one moves from almost universal convictions to more
intractable moral problems, the issue of why a particular principle ought
to be accepted comes to the fore. The case of the conjoined twins is one such
instance of moral controversy, because of the inevitable death of Mary resulting
from separation, and the inevitable (yet preventable) proximate death of Jodie
without separation.
If the court were to claim a) that as a court of law, it had a duty to come
to a substantively correct moral decision, and b) that it had done so, it
would undoubtedly find itself under attack, because others would dispute that
the decision to allow separation was the correct moral decision. Unless
the court has a satisfactory means of demonstrating that it has good reasons
for thinking its decision is correct or at least preferable to alternatives,
such a bold claim would meet with derision. If Ward LJ simply intended to
distance himself and his colleagues from this undesirable situation, then
this is understandable, even if not defensible (for he had not established
that the court was not under a duty to come to the right moral decision).
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5. A practical framework
Re A is not the first case concerning conjoined
twins, and Courtney and Natasha Smith remind us that it will not be the last.
Although it is to be hoped that that their separation would also have been
brought before the court, the confused reasoning in Re A does not make us
sanguine that future cases will necessarily be decided by reference to a sound
framework of legal or moral principle. McEwan's (2001) concern about the
implications of Re A is well-founded. Despite the court's opinion
that this case was unique, and that their judgment was confined to tightly
defined circumstances, it has already been followed, in the Australian case of
Queensland v Nolan ([2001] Q.S.C. 174). The health of the conjoined twins
in that case was deteriorating and the judge seems to have followed Robert
Walker LJ's reasoning in holding that the operation would be in the weaker
twin's best interests (Grubb, 2002).
We propose the following framework as the appropriate
method for resolving the questions we identified in section 3 above, and as a
guide for decision-making in the case of conjoined twins. In contrast to the
usual approach identified in section 2.4 above, we begin with level three, and
work in reverse order. This is because a proper answer to the question
'what is the law on x' can only be given after conclusions
have been reached on the concept of law, and any relevant moral principles. This
is the case whether legal idealism or legal positivism is espoused. The
technical lawyer's focus on the rules first and other points second, if at
all, can be characterised as either an attempt to answer this question on the
assumption that legal positivism prevails, or as an attempt to answer the
question that fails as a proper attempt (because the concept of law is not
adverted to at all).
We contend that a proper attempt to answer the question
'what is the law on the separation of conjoined twins' must proceed
in the following way: by examination of the concept of law debate, via moral
philosophy, and then to consideration of what rules can properly be called
'law' (what rules are rightly posited and enforced). Our answers to
these questions employ morally objective legal idealism or a version of natural
law that resonates with the principle 'lex injustia non est lex',
but we maintain that those with rival views on the concept of law must still
employ our framework, that is, begin with the conceptual foundations of level
three of our inquiry, in order properly to attempt an answer.
The following sections address the concept of law; whose
moral theory ought to be employed and why; problems of application of our
preferred moral theory to children; solutions to this problem; application of
the moral theory to conjoined twins; and consideration of other competing rights
to be taken into account regarding separation.
5.1 Level three: the concept of law
One's answer to the concept of law question
– whether law is or is not necessarily conceptually connected to morality
– will determine one's answer to questions of law. The question of
the nature of the intersection between law and morality is perhaps most obvious
to non legal theorists when determining the law in a hard case, but in fact the
concept of law question is logically prior to any determination of 'the
law' in a case: what counts as law is dependent on one's conception
of law.
In this paper, we adopt a legal idealist conception:
that law is necessarily conceptually connected to morality. More specifically it
is a morally objectivistic legal idealism: the correct conception of law is law
as morally legitimate power, and moral legitimacy is measured by an objectively
justifiable moral principle. For this purpose, we adopt Gewirth's
Principle of Generic Consistency (hereafter 'the PGC', discussed in
detail below), which we believe is an objectively justified moral principle.
Law is the enterprise of subjecting human conduct to the
governance of rules (Fuller 1969, p 96). To suppose that there is the necessity
of subjecting human conduct to the governance of rules is to presuppose a
problem of social order. To presuppose a problem of social order is to conceive
of human nature and the nature of human interactions in a particular way. More
specifically,
...we contend that there are a number of human
interests and factors which, as a constellation, define the human social
condition insofar as this condition is capable of presenting a problem of
social order. In arguing for a Natural-Law Theory [morally
objective legal idealism] we contend that the defining factors are a number of
facts of human finitude: such as, human vulnerability and mortality; limited
understanding, reason and knowledge; limited time to pursue goals; and limited
resources; and that the defining interests are:
Personal Interests. These divide into two
categories:
Biological or Life Interests. This category
includes interests in life, health, comfort, food, sex, fun, knowledge, and
control of nature. Such interests are common to most human beings, and are
functions of the fact that human beings are purely biological
creatures.
Purely Individual Goals. These are interests which
derive from differences between individuals, rather than from factors which
human beings share in common.
Moral or Reciprocity Interests. This category includes
interests in mutual accountability or responsibility for action, mutual care or
concern for the welfare of persons, respect for persons, and empathic
knowledge.
Autonomy Interests. These are manifested by a desire
to pursue other interests actively (Beyleveld and Brownsword 1994,
pp.121-122).
Only if it is assumed that human beings act in pursuit
of these constellated interests can we conceive of human relations resenting a
problem of social order that needs to be regulated. To have to presuppose that
moral interests form a necessary part of the constellation of interests that
have to be presupposed in order to conceive of a problem of social order, is to
have to presuppose a necessary conceptual conncetion between law and morality.
That it is necessary to presuppose moral interests as part of the
constellation of interests is, in our view, demonstrated by Alan Gewirth's
argument to the PGC (see 5.3.b below). Gewirth's PGC is not only the
supreme moral principle: it is the supreme principle of practical reason
(reasons for action), and overrides other non-moral and lesser moral principles.
Legal reason (law being the enterprise of subjecting human conduct to the
governance of rules) is a sub-category of practical reason, and is therefore
governed by the PGC. (For a much fuller explanation of the relationship between
law and morality see Beyleveld and Brownsword 1994 Chapters 1-4 for discussion
and methodology, particularly pp. 120-145 from which the above account is
derived).
In determining whether the separation of conjoined twins
is legally permissible, it must first be ascertained whether the particular
proposed separation is morally permissible (with reference to the PGC). If
separation is morally impermissible, one would expect separation to be
legally impermissible. On the other hand, if separation is morally
permissible, it may be either legally optional or legally required
(depending on whether to require separation would be an infringement of other
rights derived from the PGC). Our paper confines itself to legal permissibility
or impermissibility, and does not attempt to answer the question of the scope of
legal regulation (that is, whether all actions subject to moral regulation ought
to be subject to legal regulation, or only some. The former position would make
all immoral actions illegal; the latter need not).
It should be emphasised that Beyleveld and
Brownsword's definition of a legal system, which we employ (a system that
subjects human conduct to the governance of morally legitimate rules), does not
restrict legal systems to formal systems comprising legal professionals as HLA
Hart's (1994) definition does (see also Adams and Brownsword 1999, Chapter
One). A legal system is any system in which human conduct is subject to
governance by rules. We see no difficulty in designating as legal systems a
community (such as a religious community) or an institution (such as a
university) or a family, provided that these are social situations where human
behaviour is subject to rules. Such a legal system will be a valid legal system
when its rules do not violate the PGC. A person may therefore be simultaneously
the subject of many legal systems arranged in a hierarchical and/or distinct
manner, all of which systems must comply with the Principle of Generic
Consistency.
5.2 A question of morality
The first point that must be acknowledged in a serious
attempt to resolve the issue of separation is that this issue is a moral issue.
As we have indicated above, it is irrelevant whether the terminology of
'moral problem' is used: it is impossible to conceive of separation
without conceiving of a problem as defined in 2.3, above. It is also impossible
to exclude a practical problem from the sphere of the PGC: see below.
Separation involves, prima facie, the rights of two
children, and the rights of others, such as the parents. What grounds (if any)
have we for believing that any of the parties involved has rights? If they do,
how would separation impact upon all these rights?
5.3 The criteria for moral argument
We are convinced by Gewirth's argument to the PGC
(see below), and so obviously employ his moral principle in determining moral
questions, but it is possible to employ a different moral principle at level
three of our enquiry (for example, a utilitarian principle, or a rights
principle based on interest theory, rather than our preferred will-theory rights
principle). It is our contention that it is only possible for a will-based
rights theory to give a persuasive answer to this question 'why ought I to
be moral?', in addition to a consideration of what conditions need to be
fulfilled for a persuasive answer.
5.3.a Reasons for a moral theory
One of the characteristics of a moral principle is that
it provides justification for action. The search for an answer to the
dilemma of conjoined twins requires just that: a justificatory principle that
guides us to right action. Yet a moral principle requires something in addition
to this: the principle itself must be justified in order to sustain its
authority in the face of disagreement with the principle. To have authoritative
value, the justification of the principle must be sound not only from the point
of view of those who agree that one ought to be moral but disagree that
this principle is the right one, but also from the point of view of those
who assert that there is no reason at all to be moral. It would be naïve to
hope that one principle be accepted by all persons. What must be aimed at
– and what is more satisfying than mere conventional acceptance – is
an argument that demonstrates that a) one must be moral, and b) what
'being moral' requires.
The search for a proof of morality is controversial.
Some people will deny that it is possible to prove such a thing. Others may
claim that philosophers who have attempted this have failed. Many more people
may simply have a prejudice against proofs or truths outside science. It is the
received view in the current intellectual climate that absolutism is
naïve.
If a diagnosis be necessary, it may be that this
conception of knowledge results from the intellectual swing away from the view
of the world as created by God, to one in which there is no purpose or design,
but only organisms that have survived owing to their match to the environment.
But moral absolutism, and in particular the theory that we recount below, should
not be dismissed as deism clothed in post-Enlightenment argument, or as a
by-product of intellectual shortcomings. If one is to attempt a solution to the
dilemma of conjoined twins, one must also make a good faith reading of a theory
that claims to provide, or be the means of providing, right answers to moral
questions and reasons for these.
5.3.b Alan Gewirth
Among the philosophers who claim to have provided a
proof of morality, we believe there to be one particularly strong candidate:
Alan Gewirth (1978). His supreme moral principle is the Principle of Generic
Consistency: 'act in accord with the generic rights of your recipients as
well as of yourself', loosely, always act in such a way as to respect the
things that make it possible for yourself and others to act at all and act
successfully. Gewirth's argument is controversial and has received
criticism from many quarters, as well as responses to those criticisms (see e.g.
Regis 1984, Beyleveld 1991, Kramer and Simmonds 1996, Singer 2000, and a
response to the latter two by Beyleveld, forthcoming in Ratio Juris).
Gewirth (1978) claims to have provided a transcendental
proof of why we must act morally. By this it is meant that the Principle of
Generic Consistency (PGC) is a truth which is conceptually necessary as a
condition of our experience. Because of our existence, and the manner in which
we exist, we cannot deny the veracity of the principle. We are, like you, the
recipients, or envisaged recipients, of precepts concerned with action. Such
practical precepts may be, but do not need to be, moral in content. There are
essential, pervasive, generic features of action which apply whether the
precept is moral – 'thou shalt not kill' – or
instrumental – 'use a hammer rather than a screwdriver to drive
nails into wood' – to hypothetical – 'if you wish to
avoid points on your driving licence, you ought to avoid breaking the speed
limit'. Voluntariness and purposiveness are the generic features of
action. Voluntariness and purposiveness must be the generic features of action
(all action, not just moral action: if the latter were the case, the argument
would beg the question) if practical precepts are to be relevant at all: it is
pointless and illogical to direct precepts at persons who are incapable of
guiding their action by these precepts.
Gewirth's argument is dialectical, rather than
assertoric. It must be undertaken from the internal viewpoint, as an internal
conversation, and only holds good from within this internal viewpoint. It is not
an argument for establishing concrete, external truths, or as Brownsword phrases
it,
the argument does not make a direct 'assertoric'
claim that the PGC corresponds to the moral furniture of the universe
(nor, of course, that it is, in fact, generally accepted by agents) (Brownsword
1993, p 257).
If the PGC categorises murder as wrong, then it does so
'only' (!) in the sense that it proves, necessarily and logically,
that an agent must regard murder as wrong.
The summary of the argument below is phrased in a manner
that aims to be accessible. We distinguish the dialectical statements with
speech marks. Our summary is not the most precise formulation of the argument to
the Principle of Generic Consistency, and should not be taken as such. For this,
and a comprehensive defence of the argument, see Beyleveld
(1991).
Imagine that you are the 'I' of the
argument.
- 'I must accept that I am a being who acts for
purposes.' This applies despite any attempt I might make to the contrary.
If I attempt to deny that I have purposes, I evidence the purpose of denying the
claim. 'Purposes' here may include, but are not restricted to, moral
purposes (if they were so restricted, the argument would be viciously circular:
it would presuppose in its premises the conclusion it aims to establish). A
''being that acts for purposes'' is classified as an
agent. 'I am an agent.'
- 'I attach a positive value to my purposes',
which is an instrumental positive value, and emphatically does not presuppose
any moral value.
- 'I have purposes and I value them.' There are
certain features that are pervasive and necessary to agents. These, whatever
they may be, are called ''the generic features of
agency''. Without them, I would be incapable of pursuing any
purposes at
all.
- 'I must therefore regard my having the generic
features of agency as categorically instrumentally
good.'
- Because I value my purposes proactively, 'I must
consider that I ought to pursue and defend my having the generic features of
agency.'
- This means that 'I must think that other agents
ought not to interfere with my having the generic features of agency against
my will.' I must also think, if I so wish, that 'they
ought to help me to secure the generic features of agency when I cannot do so
myself.'
- I must, within my internal viewpoint, claim that 'I
have negative and positive rights to have the generic features of agency,'
which is equivalent to saying that 'I must regard myself as having the
generic rights.'
- By the logical principle of universalisability(1)
then, 'I must claim that all other agents have the generic rights –
I have the rights by virtue of being an agent, a being who acts for purposes,
so I must regard that all other agents have the generic rights' (because
they are agents).
The steps in the argument to this point have established
that 'I must regard myself and others as having the generic rights.'
The move to considering that all other agents must regard themselves as having
the generic rights and also must assent to the PGC is only clear when the
Argument for the Suffciency of Agency has been understood. The argument takes
the form of a reductio ad absurdum, in which the proposition 'I
must consider that I have the generic rights on the sufficient ground that I am
an agent' is proved by taking as a premise a statement which negates this,
and then showing that a contradiction occurs when this negation is taken in
conjunction with the previously established steps of the
argument:
'I must regard that I have the generic rights by
virtue of being an agent and for no other reason.' If I wish to negate
this, I do so by supposing that 'I have the generic rights on other
grounds, perhaps because I teach law.' I could, then, claim that 'I
have the generic rights by virtue of being a law teacher.' But to hold
this is equivalent to saying that 'if I were not a law teacher, I would
not have the generic rights.' There is an obvious contradiction here: the
argument to the PGC has already established that it follows logically from
necessary premises that I must claim that 'I am an agent, therefore
I must regard myself as having the generic rights.' It is clear that I
must consider that 'I have the generic rights simply because I am an
agent,' and for no other reason.
Since I regard that 'I and all other agents have
the generic rights,' I must accept the Principle of Generic Consistency
(PGC): 'respect the generic rights of your recipients as well as of
yourself.' (The generic rights are rights to freedom and
well-being.)
Universalising logically, I must consider that 'as
I am an agent, and I must accept the PGC by virtue of being an agent, therefore
all other agents must also accept the PGC, because they are also
agents.'
Those who are unconvinced by the dialectical argument to
the PGC might find more persuasive Beyleveld's (1996) argument that a
(contingent) comittment to human rights is a comittment to the
PGC.
5.3.c Applying the Principle of Generic Consistency
to non-ostensible agents
The Principle of Generic Consistency is claimed to be
the supreme moral principle that binds all agents to respect the generic rights
of all other agents. This requires that an agent respect the things that make it
possible to have purposes and generally fulfil one's purposes. There is a
hierarchy of goods to which an agent has rights: basic goods, which relate to
the prerequisites for action, that is the essential conditions of agency, such
as '...life, physical integrity, health and its various contributing
factors, general freedom, mental equilibrium and the like...' (Gewirth
1978, 211); non-subtractive goods, which consist of not losing what one regards
as good (ibid., 233), that is, relating to an agent's ability to maintain
present levels of purpose-fulfilment; and additive goods, which 'consist
in the means or conditions that enable any person to increase his capabilities
of purpose-fulfilling action and hence to achieve more of his goals...concerned
not with maintaining the necessary preconditions and capabilities of one's
action but with augmenting and developing these capabilities' (ibid.,
240), or in increasing current levels of purpose-fulfilment.
A straightforward application of the PGC would seem to
yield a clear result: an operation that has as an inevitable outcome the death
of one twin would seem to be the violation of that twin's basic right to
life. However, the application of the PGC to children is not so simple, as young
children (at least) do not seem to fit the definition of 'agent'
(and the definition of an agent is not an arbitrary definition, but is the
necessary conception of a being to whom practical precepts may be
addressed).
An agent is a being with the capacity for voluntary and
purposive action (ibid., 27). Babies are 'debatable cases' (ibid.,
75) of agency. It is controversial, to say the least, whether babies and perhaps
very young children actually possess the capacity for voluntary and purposive
action, in the sense that they are able to reflect on their purposes and decide
whether to pursue them. Babies are more likely than not non-agents: it would
seem that agents are not bound by the PGC to respect their rights, as babies
have no PGC rights (though this does not entail that the PGC requires us to
not respect the rights they would have, e.g. to life, had they been
agents). At first glance, the absolute moral principle seems to fail to account
for our intuitive protection of children (although even if does fail on direct
application, it may be that children's rights can be dealt with
indirectly, for example as a type of property of their parents, or
'respecting their rights' may be morally optional). If a direct
application is the end of the matter, then the PGC can give no guidance in the
case of conjoined non-agent twins.
Gewirth circumvents this undesirable state of affairs
with his Principle of Proportionality:
When some quality Q justifies having certain rights R, and
the possession of Q varies in degree in the respect that is relevant to
Q's justifying the having of R, the degree to which R is had is
proportional to or varies with the degree to which Q is had. I shall call this
the Principle of Proportionality (PP). Thus, if x units of Q
justify that one have x units of R, then y units of Q justify that
one have y units of R (ibid., 121).
Gewirth's valiant attempt is unsuccessful, however
(see Hill 1984 and Gewirth's (1984) response; and see also Beyleveld and
Brownsword 2001, pp 117-119 and pp 129-132). Potential for voluntary and
purposive action is not enough. Being an agent (having the capacity for
voluntary and purposive action, or the capacity to stand in a proactive
valuational relationship to one's purposes) is not a capacity that can be
had by degrees: either one is capable of valuing one's purposes, or
one is not. Nor are the generic rights rights that can be had by degrees: how
could half a right to autonomy be coherent? One cannot be half an agent and have
half the rights of agency any more than one can half a right to vote at the age
of nine. The Principle of Proportionality fails to provide an answer to this
dilemma.
As we noted above, the omission of babies and young
children from the class of rights-holders derived from the direct application of
the PGC does not mean that agents ought morally to kill, maim or neglect
non-agent humans. As a will theory with autonomy as its central principle,
Gewirth's theory permits agents to bind themselves and their future
behaviour, so long as the benefit of the right to autonomy is not waived
permanently. This means that agents – and polities made up of agents
– may agree to protect, for example by law, the interests of children. Any
such legal rights of children would, however, be contingent on agreement between
agents, and presumably, those who wish to harm children would not so agree.
Child protection would thus be limited to the extent that the freedom of those
who wish to harm children can be legitimately restrained by the rights of others
to impose their preference (the protection of children) on a morally optional
subject matter.
There are other alternative strategies for the
protection of children, for example an (empirical) slippery slope argument: to
fail to protect young children would lead inevitably to an undesirable state of
affairs which would contravene the PGC, for example brutal behaviour to
agents; therefore children ought to be protected in order that violations
of the PGC be avoided with regard to agents. But arguments of this kind rest on
empirical assumptions that are hard to establish or refute. A much better
strategy can be found in precautionary reasoning, a particular application of
the PGC (but not a modification of the argument to the PGC) developed by
Beyleveld, Brownsword and Pattinson (see Beyleveld and Pattinson 2000 and
Beyleveld and Brownsword 2001 pp 119-134).
The practical use of the PGC is attended by the age-old
philosophical problem of other minds: I know that I am a moral agent because I
experience my agency, but how can I know (by external observation) that others
are also agents (agency being an internal, subjective quality)? The capacities
of voluntariness and purposiveness identified by Gewirth as the necessary and
sufficient characteristics of agency are not descriptions of behaviour. When I
attempt to judge whether the person with whom I am dealing is really an agent, I
make a best guess based on my observations of whether their behaviour accords
with what I would expect from an agent, but I can never know that the
person is an agent. Ostensibly being an agent (being an ostensible agent) is not
proof of agency.
Even though it must be acknowledged that there is no
conclusive way of proving that a person is or is not an agent, this is not the
end of the story. Even though the truth of the answer to the agent
dilemma will remain irresolvable, the moral consequences of the
alternative answers to the question are not on a par. If I mistakenly treat Ms
Bloggs, the butcher, as an agent, when she is not, I have done no wrong. I have
inconvenienced myself by restricting my actions, but I have not violated the
PGC, which requires me to respect the rights of other agents. However, if I
mistakenly treat Ms Bloggs as a non-agent, and she is an agent, then I
have violated her rights and the supreme principle of morality. The PGC has
categorical force and requires me to respect other agents' rights. In the
second scenario, I have committed a moral wrong, but in the first, I have not.
Beyleveld and Brownsword (2001, pp 121-2) argue not only
that actually to violate the PGC in the second type of scenario is wrong, but
also that to risk violating the PGC when this can be avoided is
wrong:
...under the assumption that the PGC is categorically
binding, there can be no justification under any circumstances whatsoever for
violating it. Thus, to risk the possibility of violating the PGC, when this
can be avoided, is itself to violate the PGC. Therefore, it is categorically
necessary to do whatever one can to avoid this consequence (provided, of course,
that the actions taken do not conflict with more important requirements to be
derived from the PGC) (ibid., 121).
The conclusion is the following Precautionary Principle,
which is categorically binding:
If there is no way of knowing whether or not X has property
P, then, in so far as it is possible to do so, X must be assumed to have
property P if the consequences of erring in presuming that X does not
have P are worse than those of erring in presuming that X has P (and
X must be assumed not to have P if the consequences of erring in
presuming that X has P are worse than those of assuming that X does
not have P) (ibid., 122).
Whether or not the consequences are worse is to be
judged according to the PGC, in relation to the generic rights
violated.
If the being with whom I am dealing is not Ms Bloggs,
the ostensible agent butcher, but instead Baby Bloggs, the non-ostensible agent,
how ought I to proceed? I cannot be certain that Baby Bloggs is not an agent
because my reasoning is fallible. It follows from the Precautionary Principle
that I ought to assume that Baby Bloggs is an agent unless the
consequences of so assuming are worse than assuming that she is not an
agent. Examples of the latter could be where Baby Bloggs and Ms Bloggs both
require life-saving medical attention at the scene of an accident, but where the
sole doctor to arrive cannot attend to both of them. In this situation the
doctor would be justified in treating Ms Bloggs, because, being an ostensible
agent, it is more likely that the doctor will violate the PGC (fail to
respect an agent's rights) if she neglects the butcher rather than the
baby. This can be formulated as a criterion of avoidance of more probable
harm:
If my doing y to Z is more likely to cause harm h to Z than
my doing y to X (and I cannot avoid doing y to one of Z or X) then I ought to do
y to X rather than to Z (ibid., 123, discussed with reference to two partial
agents, but equally applicable to our example because the relevant consideration
is the likelihood of harm measured by the
PGC).
My duties of protection to those who are more probably
agents prevail over my duties of protection to those who are less likely to be
agents.
The outcome of this discussion of precautionary
reasoning is that, although babies and young children (including the conjoined
twins of Re A) are not ostensible agents (that is, they exhibit less than
comprehensive evidence of voluntariness and purposiveness), because there is
some evidence of agent-like characteristics or potential agency –
sentience, being human, etc – we must not risk the possibility of
violating the PGC in relation to them when this can be avoided, provided that in
avoiding this risk we do not violate more important requirements to be derived
from the PGC.
In sum, the PGC, which we consider to have been
established as the supreme principle of morality, requires all agents to respect
the generic rights to freedom and well-being of all other beings that are
ostensibly agents. Young children are not ostensible agents. Protection of
children is best effected by the avoidance of risk of violation of the PGC in
conjunction with precautionary reasoning, which requires that if there is no way
of knowing whether or not a young child really is an agent (because of the
internal nature of agency), a young child must be assumed to be an agent unless
a greater harm (measured by the PGC) would be caused by doing so than by not
doing so. We term the protection given to children's well-being by this
Precautionary Principle 'children's precautionary rights'.
Precautionary rights are not proper PGC rights, but are protections of the
(generic) rights children would have if they were agents. In the
following section we consider how to deal with the precautionary rights of
conjoined twins.
5.3.d Applying the Principle of Generic Consistency
to conjoined twins
It is clear from the discussion of precautionary
reasoning above that what may be termed children's 'precautionary
rights' must be respected unless by doing so we risk violating more
important requirements of the PGC – such as failing to respect the rights
of ostensible agents.
The case of conjoined twins is more complex than usual
conflicts between ostensible agent and partial agent, or even partial agent and
partial agent, because the nature of the conjunction between twins may render
choices made in respect of one twin a violation of the precautionary rights of
the other.
Jodie and Mary, though both partial agents rather than
ostensible agents, did not seem do display equally good evidence of partial
agency. Whatever else we can say about the empirical identification of
ostensible agents, an adult human brain is good evidence of agency.
Jodie's mental development seemed to be on a par with other
'normal' babies, and as such would be evidence of partial agency.
Mary appeared to have a severely abnormal brain, with a very poorly developed
primitive brain and other malformations not compatible with normal development.
It is a moot point whether one would class Mary as a potential agent positioned
on a further point of the scale of partial to ostensible agency than Jodie, or
whether one would take the view that Mary's brain impairment was of such
magnitude that she would never approach ostensible agency. In either case, in a
scenario of direct conflict of (precautionary) rights, Jodie's rights must
prevail because of the greater likelihood that she is an agent than Mary (and
thus the greater chance of violating the PGC should we assume that Jodie is not
an agent).
If presented with an example of conjoined twins where
both were apparently equal partial agents, and both were expected to die shortly
because of e.g. a heart condition, but it was possible to choose to save A by
separation which would cause B's death, the problem becomes more
perplexing. Assuming that the twins are not competent to make the decision
themselves (i.e. they are not ostensible agents), the decision-maker has the
following options:
Do nothing in the knowledge that A and B will die
soon
Choose to separate in the knowledge that this will cause the
death of B
Wait until B's condition precipitates a medical
emergency and hope that A can be saved
In Re A, option c) was discounted because the
outcome of separation was unlikely to be successful for A in the event of an
emergency. Unless and until medicine makes c) a realistic option, it can be
discounted for practical purposes.
Option b) was the one taken in Re A.
Precautionary reasoning would support the outcome of the case simply because of
the disparity in moral worth of the two children, but we have excluded this
possibility in our present example. In a case where the two twins are, to the
best of our knowledge, of equal moral worth, to cause the death of one is
equally as bad as to cause the death of the other.
Option a) would seem to many to be the least offensive
course: to let both children die would be counter-intuitive when one could be
saved, but at least their death would not be caused by any positive action of
the decision-maker. However, the moral distinction between act and omission is
tenuous when in both cases a choice is made that causes an outcome. We suggest
that a doctor who failed to treat a person suffering from pneumonia with
antibiotics, in the knowledge that without antibiotics the patient would
probably die, has taken something worse than a morally neutral choice. Far from
being morally neutral, option a) is to fail to respect the precautionary rights
of child A – to save her life when it could be saved – and
precautionary reasoning requires us to respect the 'rights' of even
an apparently partial moral agent unless the consequences of failing to do so
are worse.
The choice of a decision-maker in this situation must be
to make the judgment either to fail to save child A where it is possible to save
her (a morally culpable decision), or to save A by killing child B (also a
morally culpable decision). We cannot say (with any certainty) that one choice
is morally preferable when measured by the PGC. A right answer to this question
may hinge on the emotional harm done to the agents affected: if the
parents would feel more guilty in a particular instance to separate than not to
separate, then this could be seen as determining the balance of the
considerations involved.
5.3.e Other competing rights
The implementation of children's rights cannot
properly be considered in isolation from the rights of their caregivers because
of the potential for conflict. Cases on separation ought not to be decided
without a reasoned approach to the balancing of any competing rights. What
rights do the children's parents or caregivers (hereafter
'parents') have? This question is composed of two separate issues:
what impact do the rights of the parents have on the decision (the substantive
question), and what role should the parents have in making the decision (the
procedural question)? The procedural question will be dealt with in 5.3.f
below.
In 5.3.c and 5.3.d, we assumed that the only rights to
be weighed in the balance were the rights of the children. The fact that their
'rights' are precautionary rights was irrelevant: their relative
moral status was more important (which of the two children whose
'rights' we will inevitably violate by our choices is of lesser
moral importance?). When parents are brought into the equation, their superior
moral importance as ostensible agents would seem to trump the
'rights' of partial agents. We confine our discussion below to cases
of conflict between ostensible agents and those non-ostensible agents who
nonetheless have a significant degree of moral status.
It must be recognised that our discussion in this
section of the balancing of more important 'rights' of
non-ostensible agents with lesser rights of ostensible agents cannot provide a
definitive answer. The conflict here involves variables that seem to be
incommensurable. However, although it does not seem possible to give a right
answer on this application of the PGC, we contend that we still provide good
reasons for preferring separation in the case of these conjoined twins.
What rights of the parents are threatened when making
the substantive decision? Emotional harm may be done to them if the outcome of
the decision is not what they would wish, and freedom from emotional harm is a
PGC right. But how is this risk of lesser harm to a more important moral being
to be weighed against a certain greater harm to a probably lesser moral being?
Let us assume that, in a Jodie and Mary scenario where one twin whose relative
moral worth is greater than that of the other, twin J may be separated with a
good chance of a 'normal' life, but her parents prefer not to
separate (for some reason which does not outweigh the PGC justification for
separation). Both options – to separate or not to separate – risk
the violation of some rights.
It is our contention that in this circumstance,
separation ought to be performed. The PGC right to autonomy does not give agents
the right to do whatever they wish – the rights of other agents must be
respected. Even though the rights of J are merely precautionary rights, the
consequences of being wrong about her partial agency are horrific: to terminate
the life of an agent (against her will) is a much greater wrong than to do
something that causes an agent distress.
Our qualification in the paragraph above was 'for
some reason which does not outweigh the PGC justification for separation'.
Is it possible that a graver violation of the parents' rights would
outweigh separation? If the rights at stake – to life – were the
same, the rights of the superior moral person (the parent or parents) would
prevail.
It may be that the parent's right to autonomy will
be violated by separation. If the parent of J did not want to spend her life
caring for a potentially disabled child, the parent might prefer J to die
instead. The basic rights of an ostensible agent would be in conflict with the
precautionary basic rights of the child. The ramifications of such a wish are
complex and cannot be considered exhaustively here – this would include
consideration of the nature of the parent-child relationship and whether a child
can be said to be the property of the parent, and the question of whether a
parent is estopped from rejecting a child freely conceived – but we must
remind ourself that the right to autonomy is subject to the qualification of
respecting other agents' rights. A desire not to look after a child does
not translate unavoidably into the death of the child.
5.3.f The procedural question: who
decides?
What role should the parents have in making a decision
on separation? Should the decision rest with the parents or the state, or
both?
Agents have duties to themselves and to all other
agents. They also have duties to non-ostensible agents which in practice will
result in the protection of these precautionary 'rights' (life and
physical and mental well-being and development) unless there arises a direct
conflict with the rights of ostensible agents. Agents have these duties
themselves, and communities of agents have these duties also. In a sophisticated
society such as our own, the state can be regarded as the ultimate community in
which these duties reside (see below for discussion of communities and legal
systems). The state has a duty to protect the precautionary rights of
less-than-ostensible agents (direct conflicts with ostensible agents'
rights excepting).
The duties owed by the state include the safeguarding of
children's positive rights as well as of their negative rights: to respect
the generic rights of agents includes positive help as well as non-interference
(see Gewirth 1996, Chapter Two). To safeguard children's negative rights
would be merely to avoid violating a child's precautionary rights (for
example, the state must not kill children). To safeguard children's
positive rights would be to prevent the violation of a child's
precautionary rights and to help the child secure her precautionary rights when
she cannot do so herself (for example, the state must prohibit the killing of
children, and ensure that children have adequate food and shelter). Numbered
among the different instantiations of the state's positive duty to respect
the precautionary rights of children, including the precautionary right to life,
must be the duty to prevent the unjustified (by weightier PGC considerations)
taking of a child's life.
If the state has a duty to prevent the
unjustified taking of a child's life, then the state cannot allow
separation decisions – or other decisions that threaten life – to
take place without some scrutiny or guidance. This is not to say that all such
decisions must be made by the court, though in practice decisions concerning
incompetent children would need some kind of reasoned and consistent scrutiny by
a state official. The position that Ward LJ highlighted in English law –
that if the hospital and the parents in Re A had agreed, separation could
have gone ahead without the court's intervention – cannot be
countenanced if this duty is taken seriously, nor can the Attards' view
that they should be the only competent decision-makers regarding their children.
(Whether Ward LJ's statement is correct seems dubious. In the absence of
an objection, separation would be likely to have gone ahead where doctors and
parents agreed. However, a challenge to this decision could be effected by
invoking the wardship jurisdiction of the High Court. In Re B (A Minor)
(Wardship: Sterilisation) [1987] 2 All ER 206, Lord Templeman
declared that sterilisation of a girl under the age of 18 can only be lawfully
carried out with leave of a High Court judge. It is at the very least arguable
that separation should be subject to the same safeguards as sterilisation.)
Precisely what form of scrutiny or guidance would be necessary is open to
debate, although in a situation where the correct outcome is unclear – for
example in the hypothetical scenario discussed above in which one of two equally
precautionary agents may be saved or both let die – there seems no good
reason to remake a decision de novo when all that is necessary is a review of
the reasonableness of the decision as measured by the PGC.
5.4 Levels One and Two of our inquiry
In 2.4 above we identified three levels of inquiry. So
far in section 5 we have concentrated on the third level, as a resolution of the
concept of law debate and which moral principle is to be employed as the basis
of our preferred morally objective legal idealism, was prior to a determination
of the non-theoretically understood legal issues. We have argued that a decision
must be made on the correct conception of law before levels One and Two can be
attempted.
Having come to a conclusion on the concept of law
debate, levels One and Two of our inquiry can be dealt with together: they
comprise jointly the question of adjudication. A legal positivist, having
concluded that there is no necessary connection between law and morality, will
be content either to apply existing rules on the separation of conjoined twins
(level One), or, where there is no clear rule to apply (a Dworkinian hard case),
she will follow a theory of adjudication (level Two) which could in principle be
any theory that denies a necessary conceptual connection between law and
morality. On the other hand, a legal idealist will apply a theory of
adjudication that follows from her conception of law.
At this point in our paper we do not wish to become embroiled in the debate
over whether Re A can properly be called 'law', or attempt to answer
all the questions raised by the adjudication debate. We will content ourselves
with the observation that, in our judgment, polities (morally) ought to operate
a system of rules that attempts to comply with the PGC, and that judges (morally)
ought not to make judgments that violate the PGC. We recognise that some ethical
questions (including many instances of the separation of conjoined twins)
are so complex that, even if a right answer according to the PGC exists, it
may be difficult or even impossible to be sure of attaining that answer. We
acknowledge that our attempt to resolve the separation debate may be thought
to fall into this category.
Top | Contents | Bibliography
6. Conclusion
As medicine drives us past the limits of our settled
moral deliberations, it becomes increasingly important to take stock of the
rules and principles by which our lives, and those of others, are ordered. We
should be painstaking in our attempts to resolve moral and legal dilemmas that
threaten the most basic rights of individuals, such as the separation of
conjoined twins. We do not deny that the leading UK case on the separation of
conjoined twins contained sincere and thoughtful judgments that at least
attempted to resolve the legal dilemma. We maintain, however, that Re A
cannot be the last word on separation. A proper attempt to resolve this issue
must involve a consideration of embodiment and individuality; a (reasoned)
conclusion to the concept of law debate, including a resolution of which moral
theory is the basis of a legal idealist conception, and an application of a
theory of adjudication that follows from this conception. In our case, we
conclude that the correct conception of law is a legal idealism with Alan
Gewirth's Principle of Generic Consistency at its heart. We concur with
the Court of Appeal with regard to the outcome of Re A, but suggest that
the means used to arrive to the Court's decision can be improved upon.
Debates on the separation of conjoined twins exist at the cutting edge of law,
morality, and individuality. At least let our reasoning be as sharp as the
scalpel.
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[1] The allocation of body parts
between the twins implies ownership of those parts, and reinforces claims to
exclusivity, rather than equal access to shared resources. For example, in the
case of Natasha and Courtney Smith, when separation was discussed, the shared
heart which was slightly closer to Natasha's side of the body was described
by doctors as 'Natasha's', in what Gillon describes as 'a morally irrelevant
locational explanation' (2001:4) . However, when it was decided not to separate,
the heart once again was referred to as 'shared'. Whether a functioning heart
is to be seen as a shared organ, or described as Natasha' – or Jodie's
- heart is more than a question of semantics. The issue of attribution reflects
the challenge which conjoined twins pose to our normal understandings of the
body, and the consequences of those norms for conjoined twins. Although we have
followed the court (and the majority of other writers) in allocating bodily
parts to each twin, this should not be taken as an endorsement of the negative
attitudes to the conjoined state which we feel are evident throughout the judgments.
(2) If
S is a system of reasoning in which 'A has property ð entails that A as
property å' then, in S, 'B has
property ð entails that B has property å' is also valid.
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