In re A (Children) (Conjoined Twins: Surgical Separation)

Where conjoined twins cannot both survive, a court may authorise separation which will inevitably end one twin’s life if this is necessary and proportionate to save the other. Each life has equal inherent value. The court must compare the benefits and detriments of treatment, rather than assign different values to the lives themselves.

Invasive separation is a positive act, not the withdrawal of treatment. Nevertheless, necessity may justify it where one twin cannot live independently, her continued dependence will cause both deaths, and the other can live independently after separation. The act must avoid inevitable and irreparable harm, do no more than is reasonably necessary, and inflict no disproportionate harm. This is an exceptionally narrow principle.

Conjoined infant twins each had separate brains, hearts, lungs and other vital organs, but shared a circulation. The weaker twin could not survive independently because her heart and lungs were incapable of sustaining life. The stronger twin supplied oxygenated blood to both. Without separation, the resulting strain would eventually cause both children to die. Elective separation offered the stronger twin a good prospect of a long and substantially normal life but would inevitably cause the weaker twin’s immediate death.

The parents withheld consent on religious and practical grounds. The hospital sought a declaration under the High Court’s inherent jurisdiction and the Children Act 1989. Johnson J authorised the operation. The parents appealed, contending that separation was contrary to each child’s interests and would be unlawful. The central issues were how the conflicting welfare interests should be resolved and whether necessity could render the operation lawful.

1. Appeal dismissed unanimously. All three Lord Justices held that the court could authorise the proposed separation and that the operation could lawfully be performed.

2. Ward LJ, with Brooke LJ agreeing on the family-law analysis, held that elective separation was overwhelmingly in the stronger twin’s interests. It offered her a good prospect of a long and substantially normal life, whereas continued union would lead to her death. Considered separately, the operation was not in the weaker twin’s interests because it would end her life and confer no countervailing benefit. Robert Walker LJ considered that restoring bodily integrity meant the operation was in both twins’ interests.

3. The court had to exercise its own independent judgment under section 1(1) of the Children Act 1989. The parents’ conscientious wishes commanded profound respect but were not determinative. Where the welfare of two children conflicted, the court had to adopt the least detrimental alternative. It was impermissible to regard one life as intrinsically more valuable. It was permissible to compare the benefits and burdens of the proposed treatment. That balance strongly favoured separation.

4. The judge had erred by treating separation as analogous to withdrawing life-sustaining treatment. The operation required invasive positive acts and would directly cause the weaker twin’s death. The reasoning in Airedale NHS Trust v Bland [1993] AC 789 did not convert it into an omission.

5. Ward and Brooke LJJ held that the surgeons would possess the intention required by R v Woollin [1999] 1 AC 82, because death was a virtually certain and appreciated consequence. The doctrine of double effect did not apply: the operation afforded the weaker twin no therapeutic benefit. Robert Walker LJ placed greater weight on the surgeons’ purpose of saving life, but also accepted necessity as a sufficient basis of lawfulness.

6. Brooke LJ held that necessity applied where: (i) the act was needed to avoid inevitable and irreparable evil; (ii) no more was done than reasonably necessary; and (iii) the evil inflicted was not disproportionate to the evil avoided. Those requirements were satisfied. The doctors faced conflicting legal duties to the twins; separation was necessary to save either life; the weaker twin could never survive independently; and the operation offered the stronger twin a viable life.

7. Article 2 of the European Convention did not require a different result. Both children possessed an equal right to life. The decision was confined to the unique conjunction of circumstances identified by the court and did not authorise the intentional killing of patients who cannot survive.

1. Court of Appeal: The appeal was dismissed unanimously. The declaration authorising elective separation was upheld. Permission to appeal to the House of Lords was granted.
2. Family Division: Johnson J granted a declaration on 25 August 2000 that the separation operation could lawfully be performed notwithstanding the parents’ refusal of consent. No citation for that decision is stated in the judgment.