Re A (Children) (Conjoined Twins: Medical Treatment) [2001] 2 WLR 480 (CA)

Case Title & Citation

Re A (Children) (Conjoined Twins: Medical Treatment) [2001] 2 WLR 480 (CA)

Court Name & Bench

• Court of Appeal
• Ward, Brooke and Robert Walker LJJ
• Court of Appeal (a panel of three Lords Justices of Appeal)

Date of Judgment

22 September 2000

Parties Involved

Appellants:

• Rina and Michelangelo Attard, parents of the conjoined twin girls, Jodie and Mary, who refused to consent to the separation operation on religious grounds and appealed the lower court’s decision. Pro-Life Alliance supported them.

Defendants:

• Central Manchester Healthcare NHS Trust where the twins were being treated, which applied for a declaration that it could lawfully carry out separation surgery.
• Jodie, the stronger twin, whose life operation was intended to save.
• Mary, the weaker twin, whose life would be ended by the separation operation.
• Guardian Ad Litem, a mental health and safeguarding professional, who was appointed by the court to represent the interests of the children impartially and advise on welfare matters.

Facts of the Case

Background

Jodie and Mary were conjoined twin girls, born in Manchester in 2000 to devout Roman Catholic parents originating from Gozo, Malta.[1] Religious principles influenced the parents’  medical decisions regarding the twins.[2]

Medical condition

They were joined at the pelvis but each had a separate brain, heart, lungs, digestive system and set of limbs. Despite this anatomical separation, medical experts found that Mary was entirely dependent on Jodie for survival.[3] Specifically, Jodie’s heart circulated oxygenated blood through a shared artery into Mary’s body, as Mary’s own heart and lungs were so severely underdeveloped that they could not support independent life.[4]

Prognosis

Medical consensus was clear: without surgical separation, both children would die within three to six months due to progressive cardiac failure in Jodie.[5] However, if the twins were separated, Jodie had a 94-99% survival rate and was expected lead a worthwhile life, while Mary would inevitably die within minutes of the operation due to her inability to sustain her own circulation.[6] The proposed surgery would involve clamping and severing the shared artery – effectively cutting off Mary’s sole source of blood and oxygen.[7]

Parental Position

The parents refused to consent to the operation on religious and ethical grounds, believing the children’s fate should be left to divine will and expressing concern over raising a potentially disabled Jodie in their remote and under-resourced homeland.[8]

Hospital’s Actions

The medical team, anticipating the imminent death of both twins without intervention, applied to the court for a declaration that it would be lawful to proceed with the separation surgery without parental consent.[9]

Legal Considerations

All parties conceded that both twins were legally alive and distinct individuals.[10] Thus, the central medical dilemma was that undertaking surgery was certain to cause Mary’s death but was the way to potentially save Jodie.[11]

Initial Judgment

At first instance, the court found that the operation would allow Jodie to live a ‘relatively normal life,’ whereas Mary’s continued existence amounted to ‘a life that is not worthwhile.’[12] Johnson J concluded the procedure did not constitute an unlawful killing, reasoning that the act was more akin to the lawful withdrawal of life-sustaining treatment – comparable to withholding artificial hydration or nutrition – than a direct intervention to end life.[13]

Appeal

The parents appealed, arguing that the surgery would actively end Mary’s life, was not in her best interests, and could cause future harm to Jodie, thereby rendering it unlawful under both ethical and legal principles.[14]

Issues Raised

• Whether the court could authorise an operation that would save one child but kill another?
• How to balance the best interests of both children? Under the Children Act 1989 section 1, the court must regard the welfare of each child as the paramount consideration. Which twin’s welfare should prevail where they conflict? Is it lawful to sacrifice one child’s welfare (and life) for the other’s?
• The extent to which parental autonomy and religious convictions could override medical opinion and the welfare of the children?
• Whether the doctors would be criminally liable for murder if they performed the operation and whether the defence of necessity could apply? Following Article 2(1) ECHR (right to life), does the surgery constitute an ‘intentional deprivation of life’ by the State? Under criminal law, R v Dudley & Stephens holds that necessity is no defence to a charge of murder.[15] Does Re A fall outside that rule?
• Whether the surgery could be seen as defending Jodie from a ‘fatal threat’ posed by Mary’s parasitic condition, effectively using force (the surgery) to save Jodie?
• Act or omission? The first-instance judge had treated the operation as akin to withdrawing support (an omission). The Appeal judges had to decide whether separating the twins was an active intervention or passive omission in the law’s eyes.
• Double effect and euthanasia. Could the principle of double effect (distinguishing intended vs foreseen outcomes) apply? Is separating to save one life, knowing it will end another, akin to ‘letting die’ (as in Airedale NHS Trust v Bland), or ‘killing’?[16]

Arguments of the Parties in Re A (Children)

For the Operation (Hospital and Medical Team)

• Best Interests of Jodie
  The hospital submitted that surgical separation was in Jodie’s best interests. Medical consensus indicated that Jodie had a strong chance of surviving and leading a ‘relatively normal life’ if separated. Remaining conjoined, however, would inevitably result in the death of both twins within months, as Jodie’s heart would eventually succumb to the physiological strain of supporting Mary.[17]
• Mary’s Condition and Dependency
  It was argued that Mary’s anatomical deficiencies rendered her incapable of independent life: her heart and lungs were so underdeveloped that she survived solely due to Jodie’s circulation. As Brooke LJ described, Mary was ‘parasitic’ on Jodie’s body, wholly reliant on her twin’s vital functions.[18]
• Doctrine of Necessity
  The operation was justified under the common law defence of necessity. The medical team maintained they had no intention to kill Mary; her death would be an unintended yet unavoidable consequence of saving Jodie. Relying on the criteria outlined in Southwark LBC v Williams,[19] the defence was structured around three conditions:
   (1) the act was needed to prevent inevitable and irreparable evil;
   (2) no more was done than necessary; and
   (3) the harm caused was not disproportionate to the harm avoided.
   Brooke LJ considered these satisfied and found the separation lawful under the principle of necessity.[20]

Analogy to Withdrawal of Life-Sustaining Treatment
The hospital analogised Mary’s position to patients in a persistent vegetative state, relying on Airedale NHS Trust v Bland. Just as withdrawal of artificial nutrition and hydration may lawfully be authorised in cases of medical futility, so too could Mary’s dependence on Jodie’s circulatory system be withdrawn on ethical and legal grounds. Johnson J accepted this analogy at first instance, finding the proposed procedure similar in kind to ceasing artificial life support.[21]

 Against the Operation (Parents and Pro-Life Advocates)

• Incompatibility with Mary’s Best Interests
  Counsel for the parents contended that separation was not in Mary’s best interests, as it would cause her immediate death, denying her the right to the natural duration of life. They rejected the court’s assessment that Mary’s continued life was ‘not worth living,’ arguing that such a value judgment was ethically fraught and legally dangerous.[22] They also invoked the ruling in Dudley and Stephens, asserting that necessity can never justify the intentional killing of an innocent personal.[23]
• Jodie’s Prospective Disabilities
  The parents further argued that Johnson J had overstated the benefits of separation for Jodie and had not given sufficient weight to the long-term physical and psychological challenges she might face. This included potential disability and trauma arising from both the surgery and the loss of her sister.[24]
• Religious and Ethical Objection: The Doctrine of Double Effect
  The parents, guided by Catholic moral theology, invoked the principle of double effect, which permits harmful side-effects only where the harm is not intended but merely foreseen. They argued that Mary’s death was not a side effect but a direct means to the end of preserving Jodie’s life, violating the doctrine.
• Article 2 ECHR and the Illegality of Killing
   It was also contended that the operation would breach Article 2 of the European Convention on Human Rights, which guarantees the right to life. Counsel submitted that any act directly causing Mary’s death – even to save another – would constitute an unjustified and disproportionate interference with that right. The parents maintained that both children had equal legal status and protection under the law, and that the State must not sanction the intentional killing of one person to save another.[25]

Judgment

• The Court of Appeal granted the parents’ application for leave to appeal but dismissed the appeal, thereby affirming the decision of Johnson J that the separation surgery could be lawfully carried out.
• The parents were subsequently granted leave to appeal to the House of Lords.

Legal Reasoning / Ratio Decidendi

• Paramountcy principle of Child Welfare: Per Section 1 of the Children Act 1989, the court’s primary duty was to consider the welfare (or best interests) of the children as the paramount consideration, overriding parental wishes if necessary. In typical cases with one patient, this may involve giving or withholding treatment based on welfare, sometimes overruling parental wishes as in Re W[26] or Gillick.[27] However, here, while respecting the parents’ sincere religious beliefs, the court could not allow these to supersede its independent judgment on the twins’ welfare.
• Mary as a Separate Person with Right to Life: Brooke LJ affirmed that Mary was a ‘live person and a separate person from Jodie,’ despite her severe abnormalities and dependence. As such, her life fell to be protected by the law of murder, and it was ‘impermissible to deny that every life has an equal inherent value’.[28] The court explicitly rejected any notion of ‘monstrous birth’ or valuing one life as intrinsically worth less than another.[29]
• Jodie’s Best Interests: The court found it ‘plainly right’ that the operation was in Jodie’s best interests.[30] It offered her a ‘normal expectation of life’ and significantly extended her lifespan from months to a potentially normal duration, outweighing the minor surgical risks and potential for future medical issues.[31]

Mary’s Best Interests (Complex Determination):

• • The court disagreed with Johnson J’s finding that Mary’s life was ‘worth nothing’ or ‘seriously to her disadvantage.’[32] It emphasized that the question is the ‘worthwhileness of the treatment,’ not the ‘worth of the patient’s life’.[33]
  • However, the court concluded that the operation was not in Mary’s best interests when viewed in isolation, as it offered no ‘therapeutic benefit’ to her and would ‘bring her life to an end before its natural span’.[34]

Balancing Conflicting Interests (The ‘Least Detrimental Choice’):

• • Faced with the ‘sharpest horns of dilemma’ and an ‘irreconcilable conflict’ between the twins’ interests (saving Jodie meant Mary’s death; not separating meant both die), the court had to make a choice.[35]
  • The court decided that it must apply a ‘least detrimental choice’ principle, balancing the advantages and disadvantages for each twin flowing from the proposed treatment.[36]
  • Crucially, this was not a balancing of the ‘quality of life’ in the sense of valuing one life over another. Instead, it considered the ‘worthwhileness of the treatment’ for each twin.[37]
  • The balance ‘came down heavily in Jodie’s favour’ because Mary’s continued existence was ‘so unnaturally supported’ by Jodie, making her ‘parasitic’ and effectively ‘killing Jodie’. Mary was ‘doomed for death’ and ‘incapable under any circumstances… of viable independent existence’. Giving Jodie ‘the chance of life… at the cost of the sacrifice of the life which was so unnaturally supported’ was the only way to save a life. This is analogous to the “best interests” analysis in In re J [38] or Re C,[39] but those did not involve killing one patient to help another.

Act vs. Omission (Rejection of Lower Court’s Analogy): The Court of Appeal unanimously rejected Johnson J’s characterisation of the operation as an omission (like withdrawing life support). It was a ‘positive act of invasive surgery’ that would ‘directly cause Mary’s death.’[40]

Intention to Kill (Murder and Necessity):

• • Walker LJ acknowledged that, under the strict legal test for ‘intention’ – established in R v Woollin[41] – the surgeons, by performing an act they knew would result in Mary’s ‘virtually certain’ death, would be deemed to have the legal ‘intent to kill’ Mary, however undesirable that outcome was to them. The ‘doctrine of double effect’ was not applicable as the act was not for Mary’s benefit.
  • However, Ward LJ found the operation lawful through the application of the doctrine of necessity, specifically tailored to this ‘unique case’.
  • While acknowledging the general principle that necessity is not a defence to murder per R v Dudley and Stephens and R v Howe,[42] Brooke LJ distinguished the present circumstances.[43] This was not an arbitrary choice of victim or valuing one life over another. Mary was ‘self-designated for a very early death’ and was inadvertently threatening Jodie’s life.
  • The doctors faced a ‘conflict of legal duties’: a duty to Mary (not to kill) and an ‘equally serious duty’ to Jodie (to save her life, which required intervention). In such an irreconcilable conflict, the law must permit ‘choosing the lesser of the two evils’.
  • The operation met the three requirements for necessity: (i) it avoided ‘inevitable and irreparable evil’ (the death of both twins); (ii) no more was done than ‘reasonably necessary’ (Mary’s death was unavoidable); and (iii) the evil inflicted (Mary’s death) was not ‘disproportionate to the evil avoided’ (the loss of Jodie’s life and a chance at independent existence). Ward LJ described it as analogous to ‘legitimate self-defence’ for Jodie.[44]
  • The court stressed that the operation would give both twins their ‘bodily integrity and human dignity’ which nature had denied them, even if Mary obtained it in death.

Human Rights Act 1998 (Article 2 – Right to Life): The court found nothing in the HRA 1998 (due to come into force shortly after the judgment) that would alter its conclusion. The term ‘intentionally’ in Article 2(1) was interpreted in its ‘ordinary and natural meaning’ as applying only where the purpose of the action is to cause death. Since Mary’s death was an inevitable consequence but not the purpose of the operation, it did not fall within the prohibition. The Convention’s right to life could also be subject to an ‘implied limitation’ in cases of conflicting rights.[45]

Conclusion

The case was described as ‘unique’ and ‘unprecedented.’[46] The court made it clear that this decision was not to be seen as a wide precedent for doctors to intentionally end the life of a patient who cannot survive. It was authority for a very narrow and specific set of circumstances:

• It must be impossible to preserve the life of one twin (X) without bringing about the death of the other (Y).
• The weaker twin (Y), by her very continued existence, will inevitably bring about the death of the stronger twin (X) within a short period of time.
• The stronger twin (X) is capable of living an independent life, but the weaker twin (Y) is incapable under any circumstances (including all forms of medical intervention) of viable independent existence. The judgment highlighted the judiciary’s difficult but necessary role in addressing profound ethical and moral dilemmas when legislative guidance is absent. The court expressed profound sympathy for the parents caught in such a ‘terribly cruel dilemma’.

Reference(S);

1.      Re A (Children) (Conjoined Twins: Medical Treatment) (No 1) [2001] Fam 147 (CA) 151–153.

2.      ibid.

3.      Re A (n 1) 153–154.

4.      ibid 154.

5.      ibid 155–156.

6.      ibid.

7.      Margaret Brazier and Emma Cave, Medicine, Patients and the Law (6th edn, Manchester University Press 2016) 476–477.

8.      Re A (n 1) 153; Andrew Bainham, ‘A Right to Live or a Right to Die? A Study of the Legal Management of Some Medical Dilemmas’ (2001) 60(1) Cambridge Law Journal 34, 41.

9.      Re A (n 1) 150–151.

10.  ibid; see also Jonathan Herring, Medical Law and Ethics (7th edn, OUP 2022) 414–415.

11.  Re A (n 1) 156.

12.  ibid 157 (Johnson J).

13.  ibid; see also Airedale NHS Trust v Bland [1993] AC 789 (HL).

14.  Re A (n 1) 158–159.

15.  R v Dudley and Stephens (1884) 14 QBD 273 (QB) 273–277.

16.  Airedale NHS Trust v Bland [1993] AC 789 (HL).

17.  Re A (n 1), 972–73 (Johnson J).

18.  Ibid.

19.  Southwark LBC v Williams [1971] Ch 734 (CA).

20.  R v Dudley and Stephens (1884) 14 QBD 273 DC, discussed at 500 (Ward LJ).

21.  Re A, 973–74 (Johnson J).

22.  Ibid.

23.  R v Dudley and Stephens (1884) 14 QBD 273, 287 (Coleridge LCJ).

24.  Re A, 973.

25.  Re A, 977–78; see also Pretty v United Kingdom (2002) 35 EHRR 1 [38].

26.  Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 3 WLR 758 (CA).

27.  Gillick v West Norfolk and Wisbech AHA [1986] AC 112 (HL).

28.  Re A (Conjoined Twins: Medical Treatment) (No 1) [2001] Fam 147 (CA) 187–188, 204–206 (Brooke LJ), 248–249 (Ward LJ).

29.  Airedale NHS Trust v Bland [1993] AC 789 (HL), especially 864–865 (Lord Mustill) (rejection of discriminating value judgments about human life).

30.  Re A (n 1) 187–188, 193 (Brooke LJ), 238–239 (Ward LJ).

31.  Ibid.

32.  Re A (n 1) 239–241.

33.  Re A (n 1)194–196.

34.  Ibid.

35.  Re A (n 1) 238–248.

36.  Ibid.

37.  Re A (n 1) 503–504.

38.  Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 (CA).

39.  Re C (A Minor) (Wardship: Medical Treatment) [1990] 1 FLR 26 (CA).

40.  Re A (n 1) 239–241, 247–248, 251–254 (Ward LJ), 205, 220–223 (Brooke LJ).

41.  R v Woollin [1999] 1 AC 82 (HL).

42.  R v Howe [1987] AC 417 (HL).

43.  Re A (n 1) 238–248, 250–253 (Ward LJ), 225–226 (Brooke LJ).

44.  Re A, 510–512.

45.  Pretty v United Kingdom (2002) 35 EHRR 1 (ECtHR).

46.  Re A (n 1) 215–216 (Brooke LJ), 250–254 (Ward LJ). Judges explicitly refer to the case as “unique” or “unprecedented.”