By AUSTEN IVEREIGH

What is this creature in the eyes of the law?” the judge asked a packed London courtroom in mid-September, pointing to an artist’s sketch of 6-week-old twins. The babies, named Jodie and Mary by the court, lay flat on their back, a single trunk with a head at each end. Their legs protruded out from either side. Seen from above, they formed a cross.

At issue was the lawfulness of doctors at a hospital in the north of England separating the twins on an operating table, against the wishes of their Maltese Catholic parents. The fuse had been lit: Jodie’s heart was bearing the strain of her sister. Without surgery to separate them, both would be dead in months. But the surgery would kill Mary, and this the parents could not agree to. With the parents and the doctors at odds, the law would decide. Once inside the courtroom, Jodie and Mary became a seminar in lifeboat ethics.

If the answer to Lord Justice Henry Brooke’s question was that Mary was a human being, deserving of the protection the state must offer equally to all people, with what moral and legal justification could her life be sacrificed, as the doctors wished, to give her sister a normal life?

The first answer was that Mary was a “pitiful creature,” parasitic on her sister. This was the view of Justice Robert Johnson in August, who ruled that the operation was like switching off a life-support machine (Jodie) attached to a patient “destined for death” (Mary). Ethicists were alarmed: These were reasons for euthanasia. But a number of commentators still believed the operation could be justified by a choice of the lesser evil. And some Catholic ethicists cited the doctrine of double effect: Mary’s death was the foreseen but unintended consequence of an operation intended to save life.

But the principle of double effect did not apply, the archbishop of Westminster, Cormac Murphy O’Connor, later told the Court of Appeal. The good effect was here produced by means of the bad; it would be both foreseen and intended that the operation would cause Mary’s death. It would transgress a basic principle of British law, the archbishop went on to argue: that it is never permissible to kill an innocent person, even to save the life of another.

The three appeal judges seemed at first to agree. After criticizing Johnson, who was “wrong to find [Mary’s life] was worth nothing,” Lord Justice Alan Ward said there was no place for euphemism. He had been awake at night, he told the court, pondering this awesome question: Could it be right and lawful “to save Jodie by murdering Mary”?

But having endorsed sanctity of life principles, the appeal judges went on to perform a Houdini act. Each twin had an equal right to life, they ruled Sept. 22, “so the right of each goes into the scales, and the scales remain in balance.” Other elements, such as the value of the surgery and its outcome, had to be added. When this was done, “the balance is heavily in Jodie’s favor.”

The other arguments and analogies in the judges’ 120-page judgment seem strained and unpersuasive. One argued -- oddly, given the nature of the operation, and its foreseen effect on Mary -- that the surgery would give the children’s bodies “the integrity that nature denied them.” Another said the operation was in the “best interests” of both twins, while Mary, said the most senior judge, could be compared to a 9-year-old in a playground with a machine gun. She was an “unwitting yet unjust aggressor” on Jodie.

At the heart of the judges’ thinking was that the twins’ rights and interests were antagonistic. “If Jodie could speak,” said Ward, “she would surely protest, ‘Stop it, Mary, you’re killing me.’ ”

But Jodie would have said no such thing, according to a movie playing at the time in London. “Twin Falls Idaho” concerned 30-year-old twins conjoined, like Jodie and Mary, at the abdomen. Although it meant they would both die sooner, the twins in the film avoided surgical separation, because while it would free the stronger, it would kill the weaker. “We checked in together,” they say, “and we’re going to check out together.”

Jodie and Mary were not given that chance. As they neared the end of the marathon 20-hour operation Oct. 7, teams of surgeons at St. Mary’s Hospital in Manchester severed the aorta carrying Jodie’s blood to Mary. The hospital later stated -- with breathtaking dishonesty -- that Mary had died “despite the best efforts” of surgeons.

In approving that surgery, either the court had chosen the only reasonable option, the lesser evil in heartbreaking circumstances, or it had made a catastrophic, and possibly far-reaching, ruling. But whichever view people took, no one felt comfortable that a British court had labeled a 3-month-old baby an aggressor and ordered Mary’s death.

Later her sister Jodie was said to be recovering, but still critical. To reduce her post-operative stress, the doctors said, they have placed a mirror beside her.

Austen Ivereigh is assistant editor for The Tablet, a lay-edited Catholic periodical published in London.

National Catholic Reporter, November 24, 2000

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