In Court 73 Lord Justice Ward gave his ruling: Mary has a right to life, but no 'right to be alive'

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The Independent Online

There was, quite disgustingly, some rather more prosaic business to be completed yesterday in court 73 of the courts of British justice, before Lord Justice Ward could deliver his judgment on the life or death of the conjoined twins known to the world as Jodie and Mary.

There was, quite disgustingly, some rather more prosaic business to be completed yesterday in court 73 of the courts of British justice, before Lord Justice Ward could deliver his judgment on the life or death of the conjoined twins known to the world as Jodie and Mary.

The BBC had applied to the court for restrictions to be lifted on the media's reporting of the country of origin of this blighted new family. The argument was that "everybody" knew anyway exactly where this "mediterranean island" with its "devout Roman Catholic inhabitants" and its "poor medical facilities" was. The family's lawyer confirmed, in response, that his clients were entirely against this information being disclosed.

Since their first children were born at St Mary's in Manchester on 8 August, the parents of Mary and Jodie have had to deal not only with the crushing blow that the hospital could not do as they had hoped and save both of their children, but their privacy has gradually been whittled away. It now exists in name only.

The parents discovered that they were expecting conjoined twins at the end of the first trimester. Their own country, which the media was at first told, was in "eastern Europe," did not have the facilities to assist with such a pregnancy, so under a reciprocal agreement between Britain and Malta, the expectant parents came here to give birth under the NHS.

But soon after the birth, it became clear that of the two children, joined at the abdomen, one was alert and functioning, while the other, without a heart and lungs of her own, was reliant on her sister to pump her blood through a shared aorta. Surgeons at St Mary's advised the parents that both children would die within six months unless the parasitic child was separated. The parents refused to give their consent, and St Mary's went to court to gain the right to operate.

Since then, the parents' privacy has been gradually eroded. Newspapers have visited Gozo already, and interviewed the twins' grandmother, with whom the recently married parents live. The parents want their children to live out their brief, natural lifespan, believing this to be "God's will". They have also expressed worries about local medical facilities, as well as local prejudice against disabled children. In this desire, they have attracted the support of the Pope and an offer of a safe haven in Italy to care for their children as they see fit until their deaths. The case has attracted much controversy, as it creates an ethical, medical and religious dilemma.

Never the less, Mr Justice Johnson found on 25 August that the separation should go ahead, and the parents mounted their appeal. The privacy of the children was further invaded when a drawing of them, requested by the appeal court, was released to the media, surely satisfying little more than morbid curiosity.

Lord Justice Ward, clearly upset by the BBC's request for the location of Jodie and Mary's home country to be revealed, suggested that it was not the business of the court to give its blessing to the activities of people who "pry, and pry, and pry," disregarding the family's right to a private life. After a brief recess, though, he announced in open court that the family were from Gozo, off the coast of Malta.

Insiders at the BBC said the corporation wished for the ban to be lifted as Gavin Hewitt has made a film about the case which includes footage of the island. Shame on them. The prospects of this family ever being able to return to anything resembling a normal life after their terrible ordeal are now even more slim than they became the moment that St Mary'slaunched court proceedings to operate on Mary and Jodie without the consent of their parents.

With this sideshow, conducted in the name of press freedom to exploit the "human interest" in private sorrow and tragedy, over, Lord Justice Ward could return to the solemn business of summarising the results of two and a half weeks of deliberation by himself and his colleagues, Lord Justices Brooke and Robert Walker

The three peers had "truly agonised" over this difficult case, he said, stressing that the full legal argument could only be understood by referring to the 130 pages of single-spaced typescript in which he and his colleagues had presented their arguments.

Essentially, the previous argument, made by Mr Justice Johnson, was rejected, as it was decided by the court of appeal that he was wrong to suggest that Mary's life was worth "nothing".

This decision, he then said, continued to present the court with an "unreconcilable conflict". Clearly, the court could not, in the circumstances, do what was best for each child, but to balance the welfare of one child against the other. While Lord Justice Ward suggested that the wishes of parents must be treated with respect, he decide also that they could not be "sovereign". In this case, "the parents position is, in his view "pre-eminently reasonable". He did, however, believe them to be overly "pessimistic" about Jodie's disabilities.

Lord Justice Ward went on to say that while the right to life is universal, and that we are not entitled to value one life over another, it is fair to say that while Mary has the right to life she has no "right to be alive" as she sucks the "life blood from Jodie." When the case is looked at in this way, "the scales come down in Jodie's favour" and "it is the less detrimental choice to let separation take place".

That settled, the judges then had to decide whether the operation would be lawful, involving, as is does, the "intent to kill even without the desire to gain that result". It would be lawful, he said, because in the aftermath of the Tony Bland case it was decided that deliberate killing was not permissible except in "self-defence or in the legitimate defence of others". Since "Mary is killing Jodie"and Jodie is too young to make her wishes plain herself, it must be assumed that the operation is legal as it is in Jodie's defence. Lord Justice Ward also commented on how a six-year-old boy firing a gun in a classroom cannot be held responsible for his actions, which would suggest that Mary was not responsible for her actions in killing Jodie. Lord Justice Ward did not, however, follow this line of reasoning to the conclusion that the argument that Mary was killing Jodie was therefore illegitimate, and dismissed the appeal. His two colleagues upheld this decision, and presented their unanimous ruling "with sorrow".

Now, with the legal process in this country complete, the medical staff at St Mary's hospital are within their rights to undertake the operation tomorrow. However, they have agreed to stand by the November deadline which has been made for the operation. Jodie is in no immediate danger, and it is the opinion of the experts that the operation could be most successfully completed when the babies are three months old anyway. The parents have been given leave to appeal to the house of Lords, and are now taking stock and receiving legal advice. Their legal representative, John Kitchingham, has not yet ruled out further appeals to the European Court of Human Rights.

The enduring tragedy of this case is that the decision is not what the parents wish. That is why the move to reveal the whereabouts of their family home is all the more an unedifying spectacle. And all the more appalling that these people are unlikely to be able to come to terms with all that has happened, without those who desire to "pry and pry and pry" dogging their lives with their remaining child.