Playing God: Mary must die so Jodie may live longer

Issues in Law and Medicine

Volumn 17, Issue 2, 2001, Pages 123-164

  Lugosi, Charles I ^a,b,c  

^a YALE UNIVERSITY   (United States)

^b UNIVERSITY OF WESTERN ONTARIO   (Canada)

^c Ontario and British Columbia Bars ^*  (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONJOINED TWINS; ETHICS; FEMALE; HUMAN; HUMAN RIGHTS; ILLNESS BEHAVIOR; INFORMED CONSENT; LEGAL ASPECT; MORALITY; NEWBORN; PHILOSOPHY; UNITED KINGDOM;

ENGLAND; ETHICAL ANALYSIS; FEMALE; HUMAN; HUMAN RIGHTS; INFANT, NEWBORN; INFORMED CONSENT; MORALS; PHILOSOPHY; TREATMENT REFUSAL; TWINS, CONJOINED;

EID: 0035465320     PISSN: 87568160     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (327)

1. See Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All E.R. 961 (C.A. Civ.) (U.K.).
2. Id. at 1004, 1006. See generally Sally Sheldon & Stephen Wilkinson, Conjoined Twins: The Legality and Ethics of Sacrifice, 2 MED. L. REP. 149 (1997).
3. THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATATION 2 (George J. Annas & Michael A. Grodin eds., 1992). The Nuremberg Code is a collection of ethical laws pertaining to the conduct of physicians engaged in human experimentation. It was formulated by American Judges in the case of United States v. Karl Brandt et al., Oct. 1946-Apr. 1949, as a direct response to reported German atrocities against involuntary subjects during World War Two. The Doctors's Trial, as the case was called, is reported in 1 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW 10 (1950). In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the Nuremberg Code was not pleaded and played no role in the outcome of the case.
4. THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATATION 2 (George J. Annas & Michael A. Grodin eds., 1992). The Nuremberg Code is a collection of ethical laws pertaining to the conduct of physicians engaged in human experimentation. It was formulated by American Judges in the case of United States v. Karl Brandt et al., Oct. 1946-Apr. 1949, as a direct response to reported German atrocities against involuntary subjects during World War Two. The Doctors's Trial, as the case was called, is reported in 1 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW 10 (1950). In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the Nuremberg Code was not pleaded and played no role in the outcome of the case.
5. See In Re Boyd, 403 A.2d 744 (D.C. 1979); Strunk v. Strunk, 445 S.W2d 145 (Ky. 1969).
6. See Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 971.
7. See id.
8. Not their real names. See id. at 970.
9. See id.
10. See id. at 975.
11. See id. at 983-84.
12. See id. at 972, 973, 977.
13. See id. at 974.
14. See id.
15. See id. at 976.
16. See id.
17. See id. at 976-77.
18. See id. at 977.
19. See id. at 975.
20. See id.
21. See id. at 969.
22. See id.
23. See id. at 974-75.
24. See id. at 976.
25. See id. at 973.
26. See id.
27. See id.
28. See id. at 974.
29. See id.
30. See id. at 977.
31. See id.
32. See id. at 969, 1003.
33. See id. at 969, 978, 1012.
34. See id. at 980.
35. See id. at 981.
36. See id.
37. See id. at 980.
38. See id. at 969, 985-86.
39. See id. at 986.
40. See id. at 969, 971, 986.
41. See id. at 985.
42. See id. at 1009.
43. See id. at 986.
44. See id. at 986-87.
45. See id. at 987.
46. See id. at 969, 987.
47. See id. at 988-89.
48. See id. at 988.
49. See id.
50. See id.
51. See id. at 989.
52. See id. Judge Johnson did not define what was exclusively Mary's body, Jodie's body, or any body held in common.
53. See id. at 989.
54. See id.
55. Seegenerally, Airedale N.H.S. Trust v. Bland [1993] A.C. 789 (H.L.) (U.K.).
56. Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1.
57. See id. at 989. See also In Re F. (Mental Patient: Sterilization) [1990] 2 A.C. 1 (H.L.) (U.K.).
58. Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 990.
59. Id. See also Airedale N.H.S. Trust v. Bland, supra note 54, at 864, 891.
60. Id. at 991.
61. Id. at 991-992.
62. Id. at 991.
63. Id.
64. Id. at 992.
65. Id. at 992, 1006-08.
66. Id. at 992-3, 1006-08.
67. Id. at 993.
68. Id. at 994.
69. Id.
70. Id. at 1003, 1015.
71. Id. at 995-96.
72. Id.
73. Id.
74. Id. at 997, 1004.
75. Id. at 1002.
76. Id. at 1003.
77. Id.
78. Id. at 996-97.
79. Id. at 1004.
80. See id.
81. See id.
82. See id. at 1006, 1016.
83. See id. at 1010.
84. See id. at 1010-11.
85. See id. at 1010.
86. See id.
87. See id.
88. See id.
89. See id.
90. See id. at 1016-17.
91. See id. at 1011.
92. See id. at 1013.
93. See id.
94. See id. at 1010.
95. See id. at 976.
96. See id. at 1010.
97. See id. at 1012.
98. See id.
99. See id. at 1015.
100. See id. at 1016.
101. See id.
102. See id. at 1017.
103. See id.
104. See id. at 1024.
105. See id. at 1026.
106. See id.
107. See id.
108. See id. at 1027.
109. See id. at 1029.
110. See id. at 1030. In coming to this conclusion, Brooke L.J. considered and rejected at page 1031 the doctrine of double effect discussed in two American articles: George J. Annas, Siamese Twins: Killing One to Save the Other, HASTINGS CENTER REP., Apr. 1987, at 27; David C. Thomasma et al., The Ethics of Caring for Conjoined Twins, HASTINGS CENTER REP., July-Aug. 1996, at 4.
111. See id. at 1030. In coming to this conclusion, Brooke L.J. considered and rejected at page 1031 the doctrine of double effect discussed in two American articles: George J. Annas, Siamese Twins: Killing One to Save the Other, HASTINGS CENTER REP., Apr. 1987, at 27; David C. Thomasma et al., The Ethics of Caring for Conjoined Twins, HASTINGS CENTER REP., July-Aug. 1996, at 4.
112. Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1031.
113. See id. at 1038. See R. v. Dudley and Stephens [1884] 14 Q.B.D. 273, 285-86 (U.K.); R. v. Howe [1987] 1 A.C. 417 (H.L.) (U.K.); United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa.1842).
114. See id. at 1039. See GLANVILLE WILLIAMS, TEXTBOOK OF THE CRIMINAL LAW 604 (2d ed. 1983): The usual view is that necessity is no defense to a charge of murder. This, if accepted, is a non-utilitarian doctrine; but in the case of a serious emergency is it wholly acceptable? . . . The question is whether you could deliberately kill someone for calculating reasons. We do regard the right to life as almost a supreme value, and it is very unlikely that anyone would be held to be justified in killing for any purpose except the saving of other life, or perhaps the saving of great pain or distress. Our revulsion against a deliberate killing is so strong that we are loath to consider utilitarian reasons for it.
115. See Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1038.
116. See id. at 1039.
117. See id. at 1043. See John Smith, "Justification and Excuse on the Criminal Law," and "Necessity and Duress," the Hamlyn Lectures (1989). On the moral problem of choosing one's victim, see Andrew Ashworth Justifications, Necessity, and the Choice of Evils, in PRINCIPLES OF CRIMINAL LAW 153-54 (3d ed. 1999): Yet it is surely necessary to make some sacrifice, since the autonomy of everyone simply cannot be protected. A dire choice has to be made, and it must be made on a principle of welfare or community that requires the minimization of overall harm. A fair procedure for resolving the problem - perhaps the drawing of lots - must be found . . . one should not obscure the clearer cases where there is no need to choose a victim: in the case of the young man on the ropeladder, blocking the escape of several others, there was no doubt about the person who must be subjected to force, probably with fatal consequences.
118. See id. at 1043. See John Smith, "Justification and Excuse on the Criminal Law," and "Necessity and Duress," the Hamlyn Lectures (1989). On the moral problem of choosing one's victim, see Andrew Ashworth Justifications, Necessity, and the Choice of Evils, in PRINCIPLES OF CRIMINAL LAW 153-54 (3d ed. 1999): Yet it is surely necessary to make some sacrifice, since the autonomy of everyone simply cannot be protected. A dire choice has to be made, and it must be made on a principle of welfare or community that requires the minimization of overall harm. A fair procedure for resolving the problem - perhaps the drawing of lots - must be found . . . one should not obscure the clearer cases where there is no need to choose a victim: in the case of the young man on the ropeladder, blocking the escape of several others, there was no doubt about the person who must be subjected to force, probably with fatal consequences.
119. See id.
120. See id. at 1043-44. See R. v. Bourne [1939] 1 K.B. 687 (U.K.).
121. See Re A (Children)(Conjoined Twins: Surgical Separation), supra note 1, at 1050.
122. See id. at 1051.
123. See id. at 1052. Left unsaid was whether objective or subjective criteria were met in this case. A problem not dealt with was the role of the jury in considering the defense of necessity. See R. v. Martin [1989] 1 All E.R. 652 (C.A.) (U.K.).
124. See Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1052.
125. See id.
126. See id. Identical twins occur in about one out of 250 live births. Very rarely, perhaps in one out of 100,000 births, do identical twins developed from a single fertilized egg fail to separate completely. Only about two percent of those have four legs and are joined at the pelvic area. About 75% die at birth or within 24 hours of birth. For Mary and Jodie to have been survivors for so long was a miracle in itself.
127. In 1977 conjoined twins Amy and Angela Lakeberg were separated at Children's Hospital in Philadelphia. A court permitted the surgery to proceed, knowing that Amy would immediately die. No written reasons were released. Angela died 10 months later. See George J. Annas, Siamese Twins: Killing One to Save the Other, HASTINGS CENTER REP., Apr. 1987, at 27.
128. See Re A (Children)(Conjoined Twins: Surgical Separation), supra note 1 at 1052.
129. See id. at 1053.
130. See id. at 1054.
131. See id. at 1057.
132. See id. at 1061-62.
133. See id. at 1063.
134. See id. at 1065.
135. See id.
136. See id.
137. See id. at 1066 (quoting Wilson J. in R. v. Perka [1984] 2 S.C.R. 232 (S.C.C.) (Can.)). See R. v. Walker [1979] 48 C.C.C. 2d 126 (Ont. Co. Ct.) (Can.); R. v. Instan [1893] 1 Q.B. 450 (Can.).
138. See id. at 1066. In this context, physical integrity means the right to a whole body over which to exercise autonomy and self-determination.
139. See id. at 1067.
140. See id.
141. See id. at 1069.
142. See id.
143. See id.
144. See id. at 1070.
145. See id.
146. See id.
147. See id. at 1067.
148. See id. at 1069.
149. See id.
150. See id. at 1070.
151. See id.
152. The Court of Appeal had granted permission to appeal to the House of Lords on September 22, 2000. By September 27, the Official Solicitor had been advised by the parents they did not wish to appeal. On October 30, a summons was issued by the Pro-Life Alliance seeking to appoint Bruno Quintavalle as guardian ad litem for Mary and to remove the Official Solicitor, Laurence Oates from acting for failure to launch an appeal to save Mary's life. The originating application before the President of the Family Court, Justice Dame Elizabeth Butler-Sloss was dismissed on November 3. A panel of the Court of Appeal, Justices Ward and Walker, heard an application for permission to appeal within three hours the same day, and denied permission to appeal. The operation was proceeding even as the reasons were being read out in the Court of Appeal on November 6, 2000. See Re A (Children) (Conjoined Twins) (No.2) [2001] 1 F.C.R. 313 (C.A. Civ.) (U.K.). The Official Solicitor didn't see a need to appeal, not viewing the case as a precedent. See BBC News Online, Solicitor's 'Agony' over Twins Decision (Sept. 29, 2000) at .
153. See BBC News Online,Marathon Op to Separate Twins (Nov. 7, 2000) at ; BBC News Online, Siamese Twin Dies After Separation (Nov. 7, 2000) .
154. See BBC News Online,Marathon Op to Separate Twins (Nov. 7, 2000) at ; BBC News Online, Siamese Twin Dies After Separation (Nov. 7, 2000) .
155. See BBC News Online, Siamese Twin Op Details Revealed (Dec. 7, 2000) at .
156. See id.
157. See id.
158. See id.
159. See BBC News Online, Jodie's Parents Tell of Grief (Dec.7, 2000) at . Mr. and Mrs. Attard were paid £150,000 for the interview. The money was expected to be used for Jodie's future care. The publicity ban pertaining to identity was lifted the day before the interview for the parents to be named in the interview with Martin Bashir, and in a documentary filmed by the television company Grenada. See BBC News Online, Siamese Twin Parents Named (Dec. 6, 2000) .
160. See BBC News Online, Jodie's Parents Tell of Grief (Dec.7, 2000) at . Mr. and Mrs. Attard were paid £150,000 for the interview. The money was expected to be used for Jodie's future care. The publicity ban pertaining to identity was lifted the day before the interview for the parents to be named in the interview with Martin Bashir, and in a documentary filmed by the television company Grenada. See BBC News Online, Siamese Twin Parents Named (Dec. 6, 2000) .
161. See id.
162. See id.
163. "Siamese Twin Inquest Verdict," BBC News Online (Dec. 15, 2000) at .
164. See id.
165. See BBC News Online, Siamese Twin Verdict 'Will Be Difficult' (Dec. 15, 2000) at .
166. R. v. Dudley and Stephens, supra note 111, at 285-86. The details of the narrative which follows have been gleaned from the fascinating account of the story of the voyage and trial in A.W. BRIAN SIMPSON, CANNIBALISM AND THE COMMON LAW 45-72, 195-255 (1984).
167. R. v. Dudley and Stephens, supra note 111, at 286-88 (emphasis added).
168. Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1038 (citing R. v. Dudley and Stephens supra, note 111 and R. v. Howe supra, note 111).
169. See id. at 969.
170. See id. at 987.
171. Sce generally MICHAEL RADELET ET AL., IN SPITE OF INNOCENCE: ERRONEOUS CONVICTIONS IN CAPITAL CASES (1992); BARRY SCHECK ET AL., ACTUAL INNOCENCE (2001).
172. Sce generally MICHAEL RADELET ET AL., IN SPITE OF INNOCENCE: ERRONEOUS CONVICTIONS IN CAPITAL CASES (1992); BARRY SCHECK ET AL., ACTUAL INNOCENCE (2001).
173. Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1007-08 (emphasis added) (citing Bingham M.R. in Re Z (a minor) (freedom of publication) [1995] 4 All E.R. 961, 986 (U.K.)).
174. Id. at 968.
175. R. v. Howe, supra note 111, at 430 (emphasis added).
176. rd ed. 1997 & Supp. 1999).
177. See id. at 7.
178. JOHN STUART MILL, Utilitarianism, in THE UTILITARIANS 407 (1961).
179. See id. at 412.
180. See id. at 418.
181. See id. at 455.
182. See id. at 465.
183. John Arras & Robert Hunt, Ethical Theory in the Medical Context, in BIOETHICS: HEALTH CARE LAW AND ETHICS, supra note 170, at 8.
184. See id.
185. See id. at 8-9.
186. Alice Domurat Dreger, The Limits of Individuality: Ritual and Sacrifice in the Lives and Medical Treatment of Conjoined Twins, 29 STUD. HIST. PHIL. BIOL. & BIOMED. Sci. 1 (1998).
187. Dr. C. Everett Koop, who eventually became Surgeon General of the United States, achieved fame in the 1970's in his unsuccessful attempt to save the Philadelphia Lakeberg conjoined twins.
188. ABC News.com Online Chat, The Choice of Life (Sept. 13, 2000) at .
189. NEW AMERICAN BIBLE (Roman Catholic St. Joseph Ed.1993) Exodus 20:13; Deuteronomy 5:17.
190. See id. at Matthew 16:25.
191. See id. at Matthew 18:8-9.
192. See id. at Matthew 12:7.
193. See id. at Matthew 7:12.
194. See id. at Matthew 6:26-34.
195. See id. at Mark 3:4.
196. See id. at Mark 10:14-16. This scripture follows Jesus' statements on marriage, divorce and entrance into the Kingdom.
197. See id. at Luke 9:48.
198. See id. at Matthew 19:6.
199. See id. at 1 John 3:16;John 15:13.
200. See id. at Matthew 16:25-26.
201. See id. at Matthew 19:16-18.
202. The high Priest Caiaphas demanded the killing of Jesus, since it was better for one man to die than to have the Jewish nation destroyed. This was a utilitarian theory based on the Argument of Numbers: John 11:49-50. In a tempest, after lots were cast, Jonah was singled out as the probable cause of the impending shipwreck. Jonah offered to be tossed into the sea, for he had disobeyed God and placed his ship and its crew in mortal danger. After a delay, and trying but failing to reach land, the sailors cried out to God as they threw Jonah into the raging sea: "We beseech you O Lord, let us not perish for taking this man's life: do not charge us with shedding innocent blood, for you, Lord, have done as you saw fit." The seas abated, and Jonah was swallowed into the belly of a large fish where he remained for three days and three nights until he was spewed upon the shore. Id. at Jonah 1:1-16; 2:1-11.
203. See id. at John 9:1-3.
204. See id. at Proverbs 6:17.
205. See id. at Proverbs 17:15. "The innocent and the just you shall not put to death." Exodus 23:7.
206. See id. at Mark 10:45; John 10:11, 17-18.
207. See Pope John Paul II, The Gospel of Life: On the Value and Inviolability of Human Life (Mar. 25, 1995) at .
208. Id. at Chap. III, § 57, p.36.
209. Id. (emphasis added).
210. See NEW AMERICAN BIBLE, supra note 183, at Job 12:10 ; 1 Samuel 2:6 ; Deuteronomy 32:39.
211. See NEW AMERICAN BIBLE, supra note 183, at Genesis 9:5.
212. See Press Release, Pro-Life Alliance, Italian Cardinal Offers Immediate Safe Haven To Manchester Siamese Twins And Their Family (Aug. 27, 2000) at .
213. See BBC News Online, Italian 'Safe Haven' for Siamese Twins (Aug. 28, 2000) at .
214. See Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1069.
215. See Arras & Hunt, supra note 170, at 12-20.
216. Id. at 12.
217. Id.
218. Id.
219. Id. at 13.
220. Id. at 14.
221. Id.
222. Id.
223. Id.
224. Id.
225. Id.
226. Id.
227. Id.
228. IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS 47 (1981).
229. See id. at 61.
230. Arras & Hunt, supra note 170 at 14.
231. See id.
232. See id.
233. See id. at 21. See generally JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980).
234. See id. at 20.
235. See John Finnis, Abortion and Health Care Ethics, in BIOETHICS: AN ANTHOLOGY 15-17 (Helga Kuhse & Peter Singer eds., 2000).
236. See id.
237. See id. Some Catholic theologians would make an exception for an abortion to save the life of an expectant mother, such as where there is an ectopic pregnancy, where the embryo cannot be successfully transplanted from the tube to the uterus.
238. Mary was of absolutely no utility to society, except as a measure of the moral character of society, which had a choice to lovingly accept or clinically reject that hopeless and helpless human life.
239. Helge Kuhse, A Modern Myth: That Letting Die is Not the Intentional Causation of Death, in BIOETHICS: AN ANTHOLOGY 257 (Helga Kuhse & Peter Singer eds., 2000).
240. Arras & Hunt, supra note 170, at 21-22.
241. See id.
242. See id.
243. See John Finnis, supra note 229, at 18.
244. See id.
245. See id.
246. See id.
247. See id.
248. See Arras & Hunt, supra note 170, at 23-6.
249. See Re A (Children) (Conjoined Twins: Surgical Separation), supra, note 1 at 969. Lord Justice Ward complained there was not enough time "to read, to reflect, to decide, and then to write." Id.
250. See id. at 1051.
251. See THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATION (George J. Annas & Michael A. Grodin eds., 1992) (hereinafter the book will be cited as "THE NAZI DOCTORS").
252. See THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATION (George J. Annas & Michael A. Grodin eds., 1992) (hereinafter the book will be cited as "THE NAZI DOCTORS").
253. See id. at 94-104, 120.
254. Eva Mozes-Kor, The Mengele Twins and Human Experimentation, in THE NAZI DOCTORS, supra note 245, at 57.
255. See id.
256. Arthur Caplan, The Doctors' Trial and Analogies to the Holocaust in Contemporary Bioethical Debates, in THE NAZI DOCTORS, supra note 245, at 266-68.
257. Telford Taylor, Opening Statement of the Prosecution December 9, 1946, in THE NAZI DOCTORS, supra note 245, at 67-93.
258. Michael A. Grodin, Historical Origins of the Nuremberg Code, in THE NAZI DOCTORS, supra note 245, at 132-33.
259. See id.
260. Alexander Mitscherlich & Fred Mielke, Epilogue: Seven Were Hanged, in THE NAZI DOCTORS, supra note 245, at 105-07.
261. Extract from Judgment of the Military Tribunal in the Doctors' Trial, in THE NAZI DOCTORS, supra note 245, at 102-03.
262. See id. at § 1.
263. See id. at § 5, 7, 10.
264. Arthur Caplan, supra note 249, at 269.
265. See id.
266. See id.
267. R. v. Howe, supra note 111, at 427-28 (emphasis added).
268. See Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1067.
269. See id. (emphasis added).
270. This was the view of Lord Justices Brooke and Walker. See id. at 1050, 1068.
271. This was the view of Lord Ward. See id. at 1017.
272. Section 1(1)(d) Abortion Act 1967 (U.K.).
273. Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 970-71.
274. See id. at 985.
275. Canadian jurisprudence is a good example of going down the slippery slope and creating a slave class of human life forms: R. v. Mortgentaler (No. 2) [1988] 1 S.C.R. 30 (Can.) (federal abortion legislation ruled unconstitutional); Tremblay v. Daigle [1989] 2 S.C.R. 530 (Can.) (father has no legal right to stop mother from aborting his unborn child; a fetus is not a human being and has no legal rights); R. v. Sullivan [1991] 1 S.C.R. 489 (Can.) (an unborn child, even partially emerged at the time of birth, is not a human being, and may be killed without incurring criminal liability); Winnipeg Child and Family Services (Northwest Area) v. G. (D.E) [1997] 3 S.C.R. 925 (Can.) (wanted unborn baby has no legal rights to be free from child abuse and may be lawfully subject to biological and chemical effects of mothers illegal or legal drug abuse, even if it results in injury or death to the fetus); Dobson (Litigation Guardian of) v. Dobson [1999] 2 S.C.R. 753 (Can.) (pregnant mother enjoys civil law immunity for negligent torts committed against her wanted fetus; a born alive fetus has no cause of action against mother for torts committed prior to birth). The thread of consistency linking these cases is the Canadian Supreme Court's desire to protect the lawfulness of abortion.
276. For a discussion on the born alive rule, and an argument for its abolition in this new technological age, see generally Clarke Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 VAL. U. L. REV. 563 (1987).
277. See generally Clarke D. Forsythe, Legal Perspectives on Cloning: Human Cloning and the Constitution, 32 VAL. U. L. REV. 805 (1998); Stephen C. Hicks, The Right to Life in Law: The Embryo and Fetus, the Body and Soul, the Family and Society, 19 FL. ST. U. L. REV. 805 (1992); Kayhan Parsi, Metaphorical Imagination: The Moral and Legal Status of Fetuses and Embryos, 2 DE PAUL J. HEALTH CARE L. 703 (1999).
278. See generally Clarke D. Forsythe, Legal Perspectives on Cloning: Human Cloning and the Constitution, 32 VAL. U. L. REV. 805 (1998); Stephen C. Hicks, The Right to Life in Law: The Embryo and Fetus, the Body and Soul, the Family and Society, 19 FL. ST. U. L. REV. 805 (1992); Kayhan Parsi, Metaphorical Imagination: The Moral and Legal Status of Fetuses and Embryos, 2 DE PAUL J. HEALTH CARE L. 703 (1999).
279. See generally Clarke D. Forsythe, Legal Perspectives on Cloning: Human Cloning and the Constitution, 32 VAL. U. L. REV. 805 (1998); Stephen C. Hicks, The Right to Life in Law: The Embryo and Fetus, the Body and Soul, the Family and Society, 19 FL. ST. U. L. REV. 805 (1992); Kayhan Parsi, Metaphorical Imagination: The Moral and Legal Status of Fetuses and Embryos, 2 DE PAUL J. HEALTH CARE L. 703 (1999).
280. See McFall v. Shimp, 10 Pa. D. & C. 3d 90 (Allegheny County Ct. 1978).
281. See id. at 91.
282. See in Re A.C., 573 A.2d 1235 (D.C. 1990).
283. See id. at 1247.
284. See id.
285. See id. at 1249.
286. See Ex parte Whitebread [1816] 2 Mer. 99 (U.K.); Strunk v. Strunk, supra, note 4, at 147.
287. See Strunk v. Strunk, supra note 4.
288. See in re Spring, 405 N.E.2d 115 (Mass. 1980).
289. See In re Boyd, supra note 4.
290. See In Re A.C., supra note 273, at 1249-51.
291. See id. at 1251.
292. See Airedale N.H.S. Trust v. Bland, supra note 54, at 871-72.
293. See Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 999.
294. LEO KATZ, BAD ACTS AND GUILTY MINDS: CONUNDRUMS OF THE CRIMINAL LAW 61 (1987).
295. The story of the "Siamese" twins, Chang and Eng Bunker, who lived joined to the chest for 63 years, were married to sisters, and fathered 21 children, is told by Page Chichester, "A Hyphenated Life" in Blueridge Country Online, at . See also A Social History of Conjoined Twins, at . In an interview with the radio service of the BBC, 40 year-old conjoined twin, Lori Schappell, describes in fascinating detail the productive life she has had with her sister, and took the side of the parents of Mary and Jodie. BBC Interview with Lori Schappell (Sept. 5, 2000) at .
296. The story of the "Siamese" twins, Chang and Eng Bunker, who lived joined to the chest for 63 years, were married to sisters, and fathered 21 children, is told by Page Chichester, "A Hyphenated Life" in Blueridge Country Online, at . See also A Social History of Conjoined Twins, at . In an interview with the radio service of the BBC, 40 year-old conjoined twin, Lori Schappell, describes in fascinating detail the productive life she has had with her sister, and took the side of the parents of Mary and Jodie. BBC Interview with Lori Schappell (Sept. 5, 2000) at .
297. See Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1021-23. As of September 22, 2000 there were 210 reports of surgical separations of conjoined twins in world medical literature. Before 1955, surgical separation was rarely attempted.
298. John Hardwig, Is there a Duty to Die? in BIOETHICS: AN ANTHOLOGY 346 (Helga Kuhse & Peter Singer eds., 2000).
299. Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1056.
300. See R. v. Howe, supra note 111, at 432.
301. See id.
302. See id. at 433.
303. WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAW OF ENGLAND, Chap. 2, VI 2 (1765).
304. United States v. Holmes, supra note 111.
305. See id. at 369. See the detailed narrative of the shipwreck of the William Brown in A.W. BRIAN SIMPSON, CANNIBALISM AND THE COMMON LAW 45-72, 161-176 (1984).
306. These authorities reject the defense of necessity in murder cases: SMITH AND HOBAN, CRIMINAL LAW 249-251 (9th ed. 1999)(U.K.); Law Reform Commission of Canada, REPORT ON CODIFYING CRIMINAL LAW 36 (1987); P.H. ROBINSON, 2 CRIMINAL LAW DEFENSES 63-65 (1984). These authorities take an opposite view: CARD CROSS AND JONES, CRIMINAL LAW 352 (12th ed. 1992) (U.K.); AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES 3.02 14-15 (1985); See also W.R. LAFAVE & A.W SCOTT, 1 SUBSTANTIVE CRIMINAL LAW 634.38 (1986).
307. These authorities reject the defense of necessity in murder cases: SMITH AND HOBAN, CRIMINAL LAW 249-251 (9th ed. 1999)(U.K.); Law Reform Commission of Canada, REPORT ON CODIFYING CRIMINAL LAW 36 (1987); P.H. ROBINSON, 2 CRIMINAL LAW DEFENSES 63-65 (1984). These authorities take an opposite view: CARD CROSS AND JONES, CRIMINAL LAW 352 (12th ed. 1992) (U.K.); AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES 3.02 14-15 (1985); See also W.R. LAFAVE & A.W SCOTT, 1 SUBSTANTIVE CRIMINAL LAW 634.38 (1986).
308. These authorities reject the defense of necessity in murder cases: SMITH AND HOBAN, CRIMINAL LAW 249-251 (9th ed. 1999)(U.K.); Law Reform Commission of Canada, REPORT ON CODIFYING CRIMINAL LAW 36 (1987); P.H. ROBINSON, 2 CRIMINAL LAW DEFENSES 63-65 (1984). These authorities take an opposite view: CARD CROSS AND JONES, CRIMINAL LAW 352 (12th ed. 1992) (U.K.); AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES 3.02 14-15 (1985); See also W.R. LAFAVE & A.W SCOTT, 1 SUBSTANTIVE CRIMINAL LAW 634.38 (1986).
309. These authorities reject the defense of necessity in murder cases: SMITH AND HOBAN, CRIMINAL LAW 249-251 (9th ed. 1999)(U.K.); Law Reform Commission of Canada, REPORT ON CODIFYING CRIMINAL LAW 36 (1987); P.H. ROBINSON, 2 CRIMINAL LAW DEFENSES 63-65 (1984). These authorities take an opposite view: CARD CROSS AND JONES, CRIMINAL LAW 352 (12th ed. 1992) (U.K.); AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES 3.02 14-15 (1985); See also W.R. LAFAVE & A.W SCOTT, 1 SUBSTANTIVE CRIMINAL LAW 634.38 (1986).
310. These authorities reject the defense of necessity in murder cases: SMITH AND HOBAN, CRIMINAL LAW 249-251 (9th ed. 1999)(U.K.); Law Reform Commission of Canada, REPORT ON CODIFYING CRIMINAL LAW 36 (1987); P.H. ROBINSON, 2 CRIMINAL LAW DEFENSES 63-65 (1984). These authorities take an opposite view: CARD CROSS AND JONES, CRIMINAL LAW 352 (12th ed. 1992) (U.K.); AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES 3.02 14-15 (1985); See also W.R. LAFAVE & A.W SCOTT, 1 SUBSTANTIVE CRIMINAL LAW 634.38 (1986).
311. These authorities reject the defense of necessity in murder cases: SMITH AND HOBAN, CRIMINAL LAW 249-251 (9th ed. 1999)(U.K.); Law Reform Commission of Canada, REPORT ON CODIFYING CRIMINAL LAW 36 (1987); P.H. ROBINSON, 2 CRIMINAL LAW DEFENSES 63-65 (1984). These authorities take an opposite view: CARD CROSS AND JONES, CRIMINAL LAW 352 (12th ed. 1992) (U.K.); AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES 3.02 14-15 (1985); See also W.R. LAFAVE & A.W SCOTT, 1 SUBSTANTIVE CRIMINAL LAW 634.38 (1986).
312. See R. v. Latimer, No. 26980 Can. Sup. Ct. LEXIS 1 (Sup. Ct. Can. 2001)(Can.).
313. See id. at § 26.
314. Southwark London Borough Council v. Williams [1971] Ch. 734, 746 (C.A.) (U.K.).
315. See R. v. Perka, supra note 134, at 250.
316. See R. v. Latimer, supra note 297, at § 36.
317. See R. v. Perka, supra note 134, at 250.
318. See R. v. Latimer, supra note 297, at § 28-34.
319. This was the opinion of the pediatrician from the Great Ormond Street Hospital in London. See Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 976.
320. I am indebted to the brilliant ideas of Leo Katz, who inspired my philosophical hypotheticals. See LEO KATZ, supra note 285, at 32-38.
321. See id. at 52-58.
322. BENJAMIN CARDOZO, LAW AND LITERATURE 113 (1931).
323. EDMUND CAHN, THE MORAL DECISION: RIGHT AND WRONG IN THE LIGHT OF AMERICAN LAW 71 (1955).
324. Per Lord Justice Brooke: Re A (Children) (Conjoined Twins: Surgical Separation), supra note 1, at 1031.
325. R. v. Martin, supra note 120, at 653-54.
326. R. v. Strattom [1779] 1 Doug K.B. 239, 99 ER 156 (U.K.) (emphasis added).
327. "All that a court can say is that it is not obvious that this is the sort of clear-cut case, marking an absolute divorce of law and morality, which was of such concern to Lord Coleridge and his fellow judges." Re A (Children)(Conjoined Twins: Surgical Separation), supra note 1, at 1051.