Abstract
There are two reported cases in which courts have been asked to declare lawful surgery to separate conjoined twins where it is known that one twin will die during the procedure. Although judges granted the declaration sought, the two written decisions one from the common law jurisdiction of England and Wales, the other from a code jurisdiction in Queensland, Australia are problematic. This paper argues that neither of these cases provides a principled or certain basis for exculpating doctors in a future conjoined twin case, particularly if this case does not involve infant conjoined twins, one of whom is dying or is severely disabled.
Highlights
As medical expertise rises to meet the challenges involved in separating conjoined twins, it creates in turn ever more complex ethical and legal quandaries
Despite the fact that the foreseen death of one twin raises the possibility of homicide, prior judicial sanction has been sought in only three cases: the unreported 1977 Lakewood case in the United States,[1] Re A (Children)[2] in England and Queensland v Nolan[3] in Queensland, Australia
Conjoined twins appear to be the exception to the established rule that a doctor who ends the life of a patient by a positive act – even if this is done at the request of the patient whose life has become intolerable, may be guilty of murder.[4]
Summary
As medical expertise rises to meet the challenges involved in separating conjoined twins, it creates in turn ever more complex ethical and legal quandaries. Despite the fact that the foreseen death of one twin raises the possibility of homicide, prior judicial sanction has been sought in only three cases: the unreported 1977 Lakewood case in the United States,[1] Re A (Children) (conjoined twins: surgical separation)[2] in England and Queensland v Nolan[3] in Queensland, Australia In each of these cases, judges declared that surgery would be lawful. It analyses the law of homicide – offences and defences – as applied in the two written decisions It will point out areas where uncertainty in the general law of homicide has ramifications in a conjoined-twin context and examine the reasoning in the various judgments. It concludes that it is difficult to discern any clear legal principle that could be applied to exculpate doctors in future sacrificial separation surgery cases, where the conjoined twins are not infants, one of whom is moribund
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