The Children Act Read Online Free Page B

malformed and not compatible with normal development; his chest cavity lacked functional lung tissue. He had, one of the nursing staff said, “not the lungs to cry with.”
    Mark was sucking normally, feeding and breathing for both, doing “all the work” and therefore abnormally thin. Matthew, with nothing to do, was gaining weight. Left alone, Mark’s heart would sooner or later fail from the effort, and both must die. Matthew was unlikely to live more than six months. When he died, he would take his brother with him. A London hospital was urgently looking for permission to separate the twins to save Mark, who had the potential to be a normal healthy child. To do so, surgeons would have to clamp, then sever the shared aorta, so killing Matthew. And then begin a complicated set of reconstructive procedures on Mark. The loving parents, devout Catholics living in a village on Jamaica’s north coast, calm in their belief, refused to sanction murder. God gave life and only God could take it away.
    In part, her memory was of a prolonged and awful din assaulting her concentration, a thousand car alarms, a thousand witches in a frenzy, giving substance to the cliché: the screaming headline. Doctors, priests, television and radio hosts, newspaper columnists, colleagues, relations, taxi drivers, the nation at large had a view. The narrative ingredients were compelling: tragic babies, kindhearted, solemn and eloquent parents in love with each other as well as their children, life, love, death and arace against time. Masked surgeons pitched against supernatural belief. As for the spectrum of positions, at one end were those of secular utilitarian persuasion, impatient of legal detail, blessed by an easy moral equation: one child saved better than two dead. At the other stood those of not only firm knowledge of God’s existence but an understanding of his will. Quoting Lord Justice Ward, Fiona reminded all parties in the opening lines of her judgment, “This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us—a situation which is unique.”
    In this dire contest there was only one desirable or less undesirable outcome, but a lawful route to it was not easy. Under pressure of time, with a noisy world waiting, she found, in just under a week and thirteen thousand words, a plausible way. Or at least the Court of Appeal, working to an even harsher deadline on the day after she delivered her judgment, seemed to suggest she had. However, there could be no presumption that one life was worth more than another. Separating the twins would be to kill Matthew. Not separating them would, by omission, kill both. The legal and moral space was tight and the matter had to be set as a choice of the lesser evil. Still, the judge was obliged to consider what was in Matthew’s best interests. Clearly not death. But nor was life an option. He had a rudimentary brain, no lungs, a useless heart, was probably in pain and condemned to die, and soon.
    Fiona argued, in a novel formulation which the Court of Appeal accepted, that Matthew, unlike his brother, had no interests.
    But if the lesser evil was preferable, it might still be unlawful. How was murder, cutting open Matthew’s body to sever an aorta, to be justified? Fiona rejected the notion urged on her by the hospital’s counsel, that separating the twins was analogous to turning off Matthew’s life-support machine, which was Mark. The surgery was too invasive, too much of a trespass on Matthew’s bodily integrity, to be considered a withdrawal of treatment. Instead, she found her argument in the “doctrine of necessity,” an idea established in common law that in certain limited circumstances, which no parliament would ever care to define, it was permissible to break the criminal law to prevent a greater evil. She referred to a case in which men hijacked a plane to London, terrorized