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Burden of Proof

British High Court: Doctors Can Separate Conjoined Twins

Aired September 25, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: One shall live and one shall die, despite the wishes of their parents. Will conjoined twins, who share some of the same major organs, be separated under court order?

Today, on BURDEN OF PROOF: law, religion, medicine, and ethics collide in a British courtroom.

(BEGIN VIDEO CLIP)

JOHN KITCHINGMAN, FAMILY'S SOLICITOR: They must now consider whether to take the case to the House of Lords or to the European Court of Human Rights. No decision has yet been made.

LAURENCE OATES, OFFICIAL SOLICITOR FOR "MARY": This has no happy solution so far as she is concerned. And as I said, I have wanted to make sure that all the arguments that could be advanced on her behalf are considered by the court.

LORD JUSTICE WARD, APPEAL COURT JUDGE: This is such a unique case. The circumstances are probably never likely to be repeated again.

(END VIDEO CLIP)

COSSACK: Hello, and welcome to BURDEN OF PROOF.

The world has come to know them as Mary and Jodie -- not their real names, of course, simply monikers to protect their identities. The twin girls were born just six weeks ago, conjoined to one another, sharing the functions of major organs.

GRETA VAN SUSTEREN, CO-HOST: According to doctors, the strain is threatening both their lives. The parents of Jodie and Mary want nature to decide, but doctors sued to separate them. And on Friday, a British high court gave them the authority to operate, which will end the life of Mary.

Joining us today from London is family law specialist Alan Kaufman.

COSSACK: And in Milwaukee, we're joined by family law attorney Richard Podell. Here in Washington: Brian Jones (ph), legal ethics professor Father Robert Drinan and Geoff Fruin (ph).

VAN SUSTEREN: And in our back row: Maureen McClain (ph) and Michael Winschel (ph).

Alan, first to you in London. Do we know if the parents intend to appeal to any higher court, and which direction can they go?

ALAN KAUFMAN, FAMILY LAW SPECIALIST: The answer to that is that no decision has yet been made. They've clearly been given the permission to appeal if they want to, as has the official solicitor, who is the legal representative of the child Mary. A lot of press comment over the weekend in England, one or two press commentators believing they will not appeal, and others thinking they will appeal. We just do not know yet.

VAN SUSTEREN: Alan, now, who has lawyers? Do the hospital, the doctors? Mary? Jodie? the parents? Is that the way it is? Everyone has a lawyer?

KAUFMAN: It seems like everybody has a lawyer. The main protagonists, certainly, are lawyers representing the doctors, who want to do the operation. Mary and Jodie each have their own separate lawyers as does -- as do the parents, and, in fact, the government via government officer here called the attorney general. He also has representation in court, sort of looking at it from an overall picture.

COSSACK: Alan, what's the timing on the process here? If the parents wish to appeal, how quickly could they do it? and how quickly could we expect a decision? and would there be an appeal from the House of Lords?

KAUFMAN: Very simply, the normal procedure takes ages. But unquestionably, we are talking about such a high-profile case. The whole country, maybe the whole world is looking at it. If a decision is made to appeal, all the legal documents will be filed very quickly, and, I believe, even now, there are people in the House of Lords gearing up for a very, very speedy hearing. They've got to decide which of the five law lords, as we call them, will actually deal with the appeal. It will come on pretty quickly I believe. They will know that time is running out.

The judges themselves are probably going to make a much quicker judgment than would normally be the case. And if a decision is made, one way or the other, that may not be the end of the story, because I think it's already been said, by some of the lawyers in the case, that certainly if the parents appeal, and if they lose in the House of Lords, they will consider going to what is called the European Court of Human Rights.

VAN SUSTEREN: Father Drinan, everyone has a lawyer, as Alan has said, but the Vatican also, because the parents are devout Catholics, the Vatican has a position in this.

What is the position of the Catholic Church?

REV. ROBERT DRINAN, LEGAL ETHICS PROFESSOR: Well, I'm not sure the Vatican has a clear position, but the archbishop, the Cardinal of Westminster, did say that, in his judgment, this should be allowed to go the parents. He fears a utilitarian approach by the law. Namely, the law would, in essence, say: We choose this person to die even though another person must -- another person must die. That is what the lawyers call consequentialist/utilitarian philosophy.

VAN SUSTEREN: Is the Catholic Church position on this -- the archbishop -- that the parents should decide? or is the position that you can't make a decision as to who should live and who should die? Sort of the sanctity of life.

DRINAN: Well, I don't think it is a fully developed, or sophisticated position. This has hardly ever happened before. But, from basic Catholic teaching, you can't allow one to die in order that another will live. That's very hard teaching and hard doctrine, but that it's unusual that the government is as involved as it is in England.

In the United States, I think that the parents would have the first option to make the choice, but that there's no fixed sacred doctrine that comes down from on high. We are all grasping for the best intuition. And I don't think anybody would say that if it goes the other way a terrible disaster.

But to repeat, that the Catholic Church is saying that this is utilitarian. That you are preferring one life over another life, and that -- that somehow just doesn't sound right.

COSSACK: Alan, what is to stop the parents who are -- who object to this proceeding and wish to take a position that -- to allow this to play out under what they would consider to be God's rules? What's to stop the parents from just saying: Give us our children back, and we are leaving, and we'll go back to Malta. We don't want, you know, we don't want your doctors involved. We don't want your government involved. We came here for help. This isn't the kind of help we want.

KAUFMAN: Well, you've got the practical scenario, as I understand it, these poor babies are, they've got wires coming out of them all over the place. They are being watched daily by the doctors in Manchester. To actually get up and say: Let's have our babies and go, may not be that easy in a practical sense and it may be -- and I don't know this -- the doctors would say you just can't do that, that will mean immediate death of the two of them. I don't know.

On the legal front, the plain fact is that if that was something they tried to do, I believe others, such as the hospital, would then apply to the court to make these children wards of court, which will mean the court will make an order preventing them going until all of these appeals and all the legal process is concluded.

VAN SUSTEREN: All right, well, during the course of the two-week hearing, the couple did make a statement that was read in court, and this is what the couple had to say about the case. They said, "We came to England the give our babies the very best chance for life in the very best place. Now things have gone very badly wrong, and we find ourselves in this very difficult situation. We believe that nature should take its course. If it's God's will that both our children should not survive, then so be it."

Alan, did the court, did the parents actually appear in court? or was it simply this written statement?

KAUFMAN: No, there were no -- there certainly were no parents in court. What there was was this whole array of lawyers representing all the parties. I can assure you, over a period of two to three weeks, every possible fact concerning these children and the parents' views, as well as every possible legal analysis, went into the judges making their decision.

We all know they had a terrible, terrible time in trying to come to their decision. I don't think any stone was left unturned over, in terms of investigating all the possibilities, but the parents were not there, just their lawyers. And the lawyers, I'm sure, represented them to their fullest capabilities.

VAN SUSTEREN: We're going to take a break. Up next, Mary and Jodie: where is the line between law and medicine?

Stay with us.

(BEGIN LEGAL BRIEF)

O.J. Simpson has denied claims by his ex-girlfriend that he stole items from her apartment Friday morning. Simpson claims he only entered the apartment to do laundry and take out the garbage.

While Simpson's ex-girlfriend reported him to the police, she has not pressed charges.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to cnn.com/burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show, and even join our chat room.

(BEGIN VIDEO CLIP)

CORMAC MURPHY O'CONNOR, ARCHBISHOP OF WESTMINSTER: A precedent might be set in English law that might allow an innocent person to be killed or lethally assaulted, even in order to save the life of another. If such a precedent has been set, then I would have grave misgivings about this judgment.

(END VIDEO CLIP)

VAN SUSTEREN: On Friday, a British high court ruled that doctors can operate on conjoined twins to separate them. The surgery will end the life of one of those twins. Dick, let me go to you. The four crucial issues this court addressed, let me give you three of them. The first one is: Is it in Jodie's best interest that she be separated from Mary? Mary being the sicker of the two. The second question: Is it in Mary's best interest that she be separated from Jodie? Three: If those interests are in conflict, can the court balance the interest of one against the other and so allow one to prevail against the other? and if that is permissible, how is that balancing exercise to be undertaken?

Is that the type of analysis that would be undertaken in the United States if we faced that issue?

RICHARD PODELL, FAMILY LAW ATTORNEY: Yes, I think it would be the type of analysis. But keep in mind, under English law, their rule is: You cannot have a covert act or an overt act to take a life. They describe it as murder.

But what they did in this case, by a three to nothing decision of the court of appeals, they ruled that this was one of the exceptions, an exception based on necessity, that it was necessary to save the life of one of the children.

VAN SUSTEREN: Which of course then raises why they have the fourth issue, which is, the fourth issue is: If the prevailing interest is in favor of the operation being performed, can it be lawfully performed; is that right?

PODELL: That's correct. And they did order that the surgery could take place, even though they will have to wait because the children, who were born August 8th, are too young to have surgery, according to the medical experts. The doctors said that they have to be at least three months old. So there is time to seek an expedited appeal in front of the House of Lords.

COSSACK: Joining us now by telephone is Dr. Richard Nicholson.

Dr. Nicholson, this presents a highly unusual problem I would suppose for a British doctor, like yourself, if you were involved in this case. What do you do in this situation, doctor, where your alternatives are what they are and your actions, if carried through by what the British government wants, would not only save the life of one, but would cause the death of another?

DR. RICHARD NICHOLSON, MEDICAL ETHICIST: I think the first thing you do is make a much greater effort, as a doctor -- or a team of doctors, to try to come to some agreement with the parents. The problem is, British law, at the moment, is that doctors and other professionals have been given excessive power to go to the court and say: We think this is in the best interest of the children. Therefore, it should go ahead. And the courts nearly always back them up.

And, OK, we used to have real problems with child abuse, and we needed to have child protection law, which put the interests of child first. But somehow the family has got lost, and the parents in this case got lost. The father did give evidence, via a video link from the hospital in the court of first instance, but then, when he broke down emotionally, the judge refused to go back to him, and just put a written statement into evidence. And that's all that's been heard of from the parents.

It seems to me that doctors ought to make more of an effort to try and come to an agreement with parents, and try not to go down the...

COSSACK: Dr. Nicholson, let me just change the question then a little bit. Let me make it even somewhat tougher. Suppose that the British medical profession had the opportunity to speak with the parents, and the parents said: No, we do not wish you to perform this surgery, but the British government issued an order saying we want this surgery performed. What does a doctor do then?

NICHOLSON: Well, fortunately, a British government or a court will never order a doctor to do anything. So that situation doesn't apply. They may say that it is lawful for it to go ahead.

But the problem here is that one has decided this case on a very crude utilitarian basis, that it is better to have one life after the situation regardless of its quality, rather than no lives.

And it is interesting, we've had the World Congress of Bioethics in London for the last week. I have yet to meet a single bioethicist at that conference who felt that the court had made the right decision. The lawyers there certainly thought it was the right decision. But those of us who are trying to think through the ethics of it, trying to balance, you know, crude utilitarian analyses against saying: Hang on, you know, every human being has a right to life, have all come down on the side of saying that this operation should not take place.

VAN SUSTEREN: Father Drinan, let me put you back in your former role as member of Congress. I mean, this is a rather extraordinary situation. This is a problem that has become a British problem by virtue of the fact that they were generous, inviting this couple from Malta to come to Britain to get medical care. I mean, is this common for a government to find itself in a situation where it is being generous, and finds itself now embroiled in a huge problem?

DRINAN: I agree with Dr. Nicholson, that they should have negotiated with the parents. And if the parents were adamantly opposed to this, why did they go and appeal. The doctors, do they have an agenda that's different? As Dr. Nicholson said, this is a utilitarian calculus. And I was very impressed with the fact that there's not a single bioethics consultant or expert who feels that the state should intervene.

COSSACK: All right, let's take a break.

Up next, we'll have more developments in the case of the conjoined twins, and the prospects for their parents' appeal under British law.

Stay with us. (BEGIN Q&A)

Q: On this day in 1981, who was sworn in to the U.S. Supreme Court?

A: Justice Sandra Day O'Connor

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Six-week-old conjoined twins are fighting for life, as their family and doctors fight in court. And as well, I'm sure all of you know, conjoined twins formerly were known as Siamese twins, now are called conjoined twins.

A British high court has ruled that doctors can operate to separate these twins.

Father, I want to ask you about a problem, in terms of you are a professor of law, you are also a priest, what happens when the law and religion and ethics come together. Aren't you, by definition, going to get sort of a utilitarian answer, like we have talked about today where you look down and say: Look, one can live, one has to die. We are going to make sure that one lives.

DRINAN: No, we don't get that in American jurisprudence. We should be very proud that the Supreme Court has been very sensitive to all types of claims on religious freedom. Jehovah Witnesses can't be expelled from school if they won't salute the flag. Amish children can be excused from all schooling after the 8th grade. Seventh Day Adventists get benefits if they can't work on Saturday. That's really different from the case here.

But, no, I think that in England they have no written constitution, they have not developed this. That's why I hope that this court -- this case does in fact go to the European Court of Human Rights in Strasbourg. Finally, England, after 30 years, has gone and accepted the jurisdiction of the European Convention of Human Rights to which they are a party.

VAN SUSTEREN: Dick, the court's decision, which is over 100 pages, Lord Justice Ward says in part, it says: "The reports and medical literature did not prepare me fully for the almost numbing surprise at first seeing the twins in the photographs, which are produced to the court."

Dick, you know the lawyer for Mary, the sicker of the two. What is it like for him personally to have this job of representing this very sick infant?

PODELL: Well, I know it's been very traumatic for him because you want to do what is right. But, with all due respect to Father Drinan, and I have great admiration for him, he forgot to tell you about some of the law dealing with Seventh Day Adventist and Jehovah's Witnesses with blood transfusion. VAN SUSTEREN: But this is a little different.

PODELL: It is a little different.

VAN SUSTEREN: I mean, this is London, this is -- I mean, two children who are joined. But -- so it may be a little different.

Let me go to Alan.

Alan, is there any British precedent, any law that gives any guidance at all to this court? or is it just sort of, you know, we are going to look at this issue, and this is -- we think is the way to be resolved based on the four questions we have set forth?

KAUFMAN: Well, if you read -- if you were able to read the judgment of these three judges, and the first instance, Mr. Justice Johnson, everyone of them says: They were totally surprised. This is a unique case. There are no precedents. Having said that, they did refer to certain trends and cases in recent years, and there was a lot of talk about an 1884 case to do with cannibalism on the high seas, about the defense of necessity to murder.

But I must stress that the guts, core of all of the judgments, it is a unique case, it is unprecedented. They all said: We are not trying to set precedents for anything else. We are grappling with an individual set of circumstances. We've got to make a decision just on this case.

COSSACK: Father Drinan, is this really -- you have previous articulated some answers about Jehovah's Witnesses, those are First Amendment, freedom of religion cases. Is this really a freedom of religion, a First Amendment case? is this a way someone could come in and say: I wish to practice my religion this way, and therefore someone must die.

VAN SUSTEREN: Or it could be freedom from killing, though, Roger.

COSSACK: I am just trying to put it in that constitutional...

DRINAN: I don't think it is clear, even though these parents say that we are Roman Catholics, it is not clear from where they get -- but Mr. Podell is right that in almost every case of Christian Scientists in this country, they have been told that you can't allow your child to die.

We have a famous case in Massachusetts, where the boy died because he didn't get adequate medical care, and the parents were penalized for that, and the law allowing such conduct on the part of Christian Scientists was repealed.

And likewise, with a transfusion, a famous case out of Georgetown Hospital, that the court can order the transfusion of a child who otherwise might die, even though his parents, Jehovah Witnesses, think this is specifically against the Old Testament. VAN SUSTEREN: Let me put a little twist on it. Let me go to you on this, Dick, though this almost comes down to not even a question of withholding medical care. I mean, you can frame that way, it is a question of withholding medical care, or giving it, but this is actually going to have a direct result. This will cause death. Doesn't that make it dramatically different?

PODELL: You are right, Greta. You hit the nail right on the head because, on the one hand, if you do not permit a blood transfusion, the child will die. And otherwise, if you do, the child will live. This will cause the death of one child. So that's the distinction here.

But look at the British act: It does permit, under necessity, if there is a reasonable necessity to try to save a life that they can do something to take another life; or if there is a necessity to do anything, they have a right to do that. That's how they rendered their decision, based on that.

But I would like to just point out to some of the bioethics people that I'm very familiar with the young lady who is now in her 20s who was severed about six months after birth, and the doctors then said: We are not sure if this is right or wrong. In that case, the parents permitted it, and this child is now alive, healthy, functioning, married, and every day thanks her other sister for permitting her to live.

VAN SUSTEREN: And, Dick, I am going to give you the last word. This, obviously, a very tough issue. And that is one time I definitely do not want to be a judge on a case. But that's all the time we have for today. Thanks to our guests and thank you for watching.

Tonight on CNN "NEWSSTAND": Pro hockey player Marty McSorley made a living with his aggressive antics on the ice. But now, Canadian prosecutors have hauled him into court. Should he be tried for a slashing incident in a hockey game? Send in your e-mail questions and phone-in at 10:00 p.m. Eastern time.

COSSACK: And today on TALKBACK LIVE: drugs and sports. Is steroid use tarnishing Olympic gold in Sydney? That's at 3:00 p.m. Eastern time.

And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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