The fate of conjoined twins, known only as Jodie and Mary, remains unclear after the Court of Appeal in London ruled yesterday that doctors could separate the two girls - even though the operation will mean the death of Mary - but gave permission for an appeal against the judgment.
The decision, delivered in the charged atmosphere of a crowded court 73 at the Court of Appeal, was another difficult moment in a tragic case that began when the parents appealed on religious grounds against a High Court ruling in August that the twins should be separated.
It poses the question for the Roman Catholic parents, who are from the island of Gozo, Malta, and the Official Solicitor, representing Mary, as to whether they will appeal to the House of Lords or the European Court of Human Rights.
Outside the court the parents' solicitor, Mr John Kitchingham, said they were "disappointed" by the ruling - which said that "unviable" Mary should be separated from Jodie, who would then have a chance of living a full life - and they would consider whether to appeal. The Official Solicitor, Mr Laurence Oates, described the case as "unique and exceptionally difficult" and said he would study the judgments and take into account the parents' views before deciding whether to appeal.
An operation to separate the twins, who were born joined at the lower abdomen at St Mary's hospital in Manchester on August 8th, is unlikely to take place until appeals are heard. The parents have agreed not to remove the children from Britain until surgery has taken place.
Dismissing the appeal, Lord Justice Ward, sitting with Lord Justice Brooke and Lord Justice Robert Walker, said the law required him to make a decision, to strike a balance between the twins and do what was best for them.
In a unanimous ruling, the judges agreed separation would give Jodie a "normal expectation of a relatively normal life" but Mary was "designated for death" because she relied on her sister for oxygenated blood and the girls shared an aorta. Without the operation, Lord Justice Ward said Jodie's heart would fail because of the extra strain.
Mary was alive only because "she sucks the lifeblood out of Jodie . . . who will not survive long because constitutionally she will not be able to cope. Mary's parasitic living will be the cause of Jodie's ceasing to live." Surgery was in Jodie's best interests and in Mary's, Lord Justice Walker said, "since for the twins to remain alive and conjoined in the way they are would be to deprive them of the bodily integrity and human dignity which is the right of each of them."
Lord Justice Brooke agreed, saying: "The proposed operation would give these children's bodies the integrity which nature denied them. The proposed operation would therefore not be unlawful."
Effectively extending the definition of killing, Lord Justice Ward said that in coming to the defence of Jodie to remove the threat of "fatal harm" to her from Mary by carrying out the separation, the doctors' intervention would be lawful.
The leader of the Roman Catholic Church in England and Wales, Archbishop Cormac Murphy-O'Connor, who entered a written submission to the court insisting it was "morally impermissible" to save one life at the expense of another, expressed his "grave anxiety" over the ruling. He said he was concerned the ruling would set a precedent in English law whereby an innocent person could be killed or lethally assaulted to save or prolong the life of another person.
Ms Simone Aspis, an activist with the pro-life campaign group, People First, said she was concerned that the case had concentrated on Mary dying and Jodie living instead of looking at whether the twins could live together or what medical treatment could sustain their lives: "Will this judgment allow more doctors to argue that one twin should be saved at the expense of another twin?"
Ms Barbara Hewson, a barrister in London and Dublin, described the Appeal Court ruling as "profoundly shocking" and said she believed the judges were "going beyond their constitutional role".
Ms Hewson said the courts did not have the right to sanction an operation that would kill a human being and only Parliament or a referendum could devise such a law. She also suggested that since the twins were Maltese citizens the Maltese authorities could issue extradition warrants against the doctors performing separation surgery.
A spokesman for the Reform Synagogues of Great Britain, Rabbi Jonathan Romain, suggested separating the girls was "both a terrible responsibility and a justified action".