Name: Khushboo. P. Chandiramani & Bharath anil
Id no.: 6875 & 6727
Assignment: Report on Siamese twins (Jodie and Mary)
Word count: 2000 words
Course: Business Law
Submission on: 25th April, 2010
Professor: Mrs. S. Sultana
Much of the history of humankind has been taken up with the advancement of the possible, and the present day is no exception. What is novel is that the extensions of what it is possible to do, from more efficient ways of killing people to the cloning of humans, have fast outstripped the ability of society to come to a consensus on what is permissible or right. Some of these novel questions on the cutting edge of ethics are addressed by committees of specialists and experts, such as the Human Fertilization and Embryology Authority in relation to assisted reproduction, but in many cases the issues fall to be decided by the courts. One current and particularly poignant debate is that of the separation of conjoined twins where both children will die unless one child is sacrificed to save the other.
Conjoined twins exist on the margins of our notions of embodiment and individuality. They challenge the boundaries of medical, ethical and legal possibility and their existence poses a threat to entrenched social values about the worth of lives that differ from the norm of one individual, one body. High profile instances of the sacrificial separation of conjoined twins, from twins in Philadelphia in 1977 (conjoined twins: surgical separation), have highlighted the fact that separation decisions seem to be reached on a case-by-case basis on their perceived merits, which does nothing for the internal coherence of the reasoning in the case – judges may agree on outcomes but for different reasons, which presents a problem in the application of precedents – or for the case's coherence within the law – a deserving outcome in one case may cause tensions in related law. As is often said, 'hard cases make bad law'.
When separation is considered, for example on the grounds of medical necessity, we accept that a choice has to be made between competing arguments. The leading UK case on separation, made such a choice. The determining factor of that case was the court's interpretation and application of the welfare principle. In this article, we argue that the welfare principle was inappropriate for the determination of issues of this kind: neither the content of 'welfare' nor the application of welfare arguments in competition situations has been settled or fully explored. We contend that the judgments in leave much to be desired, and do not even begin to approach the decisive status to which they aspire. We maintain that it is possible to attempt an answer to the dilemma of separation of incompetent children, but only by employing a rigorous, comprehensive and coherent argument that explores the relationship between law and morality, and operates from the starting-point of an objective moral theory. The relationship between law and morality must be explored because rival conceptions of law have different relationships with morality, and thus may result in different outcomes on a given question. Whatever moral theory is employed needs to be objectively justified if it is to establish its mandatory applicability to a question. We cannot claim to offer a solution that will streamline the law, but suggest that it is important first of all to focus on the substantively right decision before being concerned with uniformity of the case-law.
The motives driving this argument may be exemplary – twins may be separated in order to enjoy a conventional life and to avoid discrimination against their difference – but we are unconvinced that fears for twins' welfare justify such a step.
In centuries past women have suffered serious discrimination on the grounds of their sex, but we think no one would argue sincerely that women ought to have been killed, or to have...