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On today’s blog you are going to read the story of the conjoined twins Gracie and Rosie and the legal conundrum the British Court found itself when asked to decide whether Rosie could be killed in order to save Gracie.

Back in the olden days – the year 2000, Gracie and Rosie were born joined at the hip and up to their shared chest wall. Conjoined twins are very rare and everyone’s situation is different.  Some conjoined twins can be unjoined by surgery, some cannot be unjoined without putting one or the other at grave risk. The conjoined twins Abby and Brittany live fulfilling lives – and even have a Youtube video showing how they drive – each controlling one of the hands on the steering wheel despite which they drive better than my wife (yikes!).

Rosie and Gracie were not that lucky.  They were joined at the hip, had a fused spine, and shared one heart and one pair of lungs. Their shared heart was in Gracie’s body cavity so she was effectively pumping blood for Rosie.

After a few months it quickly became evident that Gracie would not be able to survive much past one year old because her heart couldn’t do the work of two.  Rosie was slowly killing her but to separate them would mean that Rosie would die for sure, immediately.

The twins ended up in an English hospital and the doctors asked the parents for permission to surgically unjoin the twins.  The parents would not give permission to effectively kill Rosie so the hospital filed a lawsuit of sorts asking the Court for guidance.

The issue was one squarely for the Courts because there was no statutory guidance available.  And in any case, the facts of these situations are so different – medically different – that no legislature could draft a law with the foresight to evaluate every position.  They can barely draft good traffic laws so …

So the conundrum was left squarely to be resolved by Common Law and the opinion, which you can find below in comments is really a testament to stare decisis and law by principals.

The Court calmly, maybe coldly, laid out the principals of law to be followed:

  • “Every person’s body is inviolate.
  • “The performance of a medical operation upon a person without his or her consent is unlawful, as constituting both the crime of battery and the tort of trespass to the person.
  • “The law recognises that there is a right and duty of parents to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment.
  • “(But) the common law has never treated such rights as sovereign or beyond review and control …. Overriding control is vested in the court.
  • “In the exercise of its wardship jurisdiction the first and paramount consideration is the well being, welfare, or interest of the human being concerned….” Especially when dealing with children.
  • “Best interest encompasses medical, emotional and all other welfare issues.”

And by taking control of the body of baby Gracie and Rosie, the Court spent much time discussing the medical evidence before it and found that with these specific medical circumstances the doctors could perform the surgery against the parent’s wishes as being in the best interests of the babies.  Or, at least, the prospect and likelihood of a full life for Gracie in short overrode or was more important than Rosie’s short life with Gracie keeping her alive.

But, the Court, probably wary of Lawyers using its opinion for more than it was intended, were very clear that the opinion was limited to where:

“… it must be impossible to preserve the life of X. without bringing about the death of Y., that Y. by his or her very continued existence will inevitably bring about the death of X. within a short period of time, and that X. is capable of living an independent life but Y. is incapable … of viable independent existence.”

(I’m sure that’s made it into an abortion appellate brief somewhere.)

The second issue the Court took much care in addressing wat the killing of baby Rosie by the doctors.  The Court held that the doctors would not be guilty of murder because their intent was not to kill Rosie but to save Gracie and therefore they would lack the intent or Mens Rea to have committed a crime.

So, with the Court opinion in hand, the Doctors took the babies into the operating room and began the 22 hour surgery.  The Court had addressed the criminality of the surgery but apparently the surgeons didn’t trust in Stare Decisis that much because when it came time to cut the artery that kept Rosie alive, the two surgeons doing the operation both held the scalpel and cut it together.

But the surgery was, in its intent, a success.  Rosie died on the operating table almost immediately and Gracie lived – with almost normal function and ability.  You will be happy to know that Gracie is alive and doing well to this day, thanks to the cold-hearted analysis of the Common Law.

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