The British Court of Appeals has now ruled that, despite their parents' wishes to the contrary, physicians may surgically separate Mary from her twin, Jodie. Some Christian ethicists, like Dennis Hollinger, consider this a wise but tragic choice concluding, apparently, that we have a moral duty to save Jodie, even at Mary's expense. Hollinger's sensitive discussion of the case is praiseworthy, but his conclusions are mistaken. On the contrary, I shall argue that the separation of Mary is morally impermissible, a morally prohibited means to Jodie's survival.
Hollinger's Argument
Professor Hollinger argues that here we have a tragic case in which both twins will die unless we intervene to save one of the two twins. The parents' opposition to the surgery, Hollinger maintains, violates the fundamental moral obligation to preserve human life when possible (proposition four). Saving Jodie by separating Mary from her is not, Hollinger assures us, a capitulation to utilitarian reasoning (proposition five). It is, rather, to achieve the better consequences of saving one rather than none (propositions two and three). To do so violates no duty not to kill (proposition one). Thus, we might reconstruct his argument as follows:
- Whenever one can preserve human life without violating a duty not to kill, one has a duty to do so.
- Separating Mary from Jodie would preserve Jodie's life without violating the duty not to kill (Mary).
- Therefore, there is a duty to separate the Siamese twins.
Notwithstanding Professor Hollinger's arguments to the contrary, we have good reasons to be suspicious of the first premise and to reject the second premise of his argument.
Is there a duty always to preserve life when one can do so without violating a duty?
Professor Hollinger himself acknowledges that we are not always required to preserve life. "...[T]housands of decisions are made daily in hospitals and nursing homes to legitimately withdraw treatment from terminal patients and allow divine providence and nature to take their course." Presumably the critical difference between the case of the Siamese twins and those thousands of decisions is terminal illness. Withdrawing and omitting life-preserving treatment is permissible, we can infer, when it is futile, when patients are irreversibly dying. In Jodie's case, the operation is not clearly futile. There is a chance (reports waver on how great the chance) that Jodie would survive the surgery. Therefore, the parents have a duty to select the separation.
Hollinger might have argued merely that separation of the twins is morally permissible; instead, he argues for the stronger conclusion, that the twins should be separated, that a failure to separate the twins would be to fail to do our moral duty. We might acknowledge that there is a general duty of beneficence, a duty to provide aid to others. And the greater the need, we may think, the more likely the duty of beneficence. Life itself is the greatest of needs. But duties of beneficence will typically be constrained by the risk involved to the agent in the performance of her action to benefit another. Thus, I have failed in my duty of beneficence if I, a world class swimmer, fail to enter calm waters to rescue a struggling five-year-old. It is less clear, however, that I have failed in my duty of beneficence if I neglect to donate a kidney to the local organ bank despite the widely publicized national shortage and despite the fact that I can get by on one kidney. How great a risk are we required to undertake in order to benefit others? That is not an easy question, but we should be cautious about advocating too rigorous a duty of beneficence for all but moral saints.
It is one thing to argue that each of us has a duty of beneficence; it is another thing entirely to argue that it is always better to act to preserve one life than to fail to preserve any. We might argue that we should place our own health at some risk to benefit Jodie (and Mary). We ought not argue that we can use Mary in order to benefit Jodie. You do not violate my dignity as a human being should you, upon my death, adhere to my wish to use my organs for others; you do further violate the dignity of the aborted fetus to use fetal material for research purposes, despite significant potential benefit gained from such research.
There are, in short, limits to our duty to act beneficently, to act in ways that will preserve human life. And not all those actions that are morally permissible are also morally obligatory. I have suggested that, at best, the separation of the twins is morally permissible, but not obligatory. I argue now that it is not even that.
The Wax Nose of Intention
John Locke worried that the interpretation of Scripture can be like a wax nose, turned and bent to fit one's particular orthodoxy. So it often seems in discussions of double effect; so it seems to me in Professor Hollinger's discussion of double effect and his first proposition.
The insight behind the principle of double effect is twofold. On the one hand, there is the insight that human beings possess a dignity that demands moral respect. As Paul Ramsey wrote, "Every human being, simply because he is the image of the living and loving God, is priceless, incomparable, unrepeatable." To recognize that sanctity is to refuse to use any person as a means to even desirable ends, to refuse to do evil in order to bring about a good state of affairs. On the other hand, there is the insight that we are not morally culpable for all foreseen evil consequences that result from our actions. It is one thing for a person to attempt to do grave bodily harm to herself. Such an intention is morally wrong. But it is not at all the same thing for a nurse to carry out her duties, knowing that she may, in fact, contract a deadly disease. That she may contract the disease is a risk she foresees but does not intend, much as the martyr who dies does not intend her death but intends to be a witness to her God.
Critical to the evaluation of an action as morally permissible or impermissible, then, is a description of the aim or intention of the action. The principle of double effect is an expression of the principle of respect for persons that states that only those actions should be performed (a) in which one's aim/intention is morally permissible, and (b) in which any foreseen evil consequences (effects) are not the means to the good aimed at, and (c) in which one has proportionately grave reasons for permitting the evil effect. Christians believe that God did no wrong in creating the world despite the fact that He knew that humans would fall into sin and that the history of the human race would be one full of sin. Given the amount and degree of sin how could the Creator be a good God? Because God's aim was to create a universe in which humans would love him, and sin is no necessary means to the achievement of that good end, and because the end of life and responding in love to God is so great a good. Therefore, God did no wrong in creating the universe.
It is a tricky thing establishing what counts as one's aim/intention and what counts as a foreseeable, but un-aimed at, effect of one's primary intention. We needn't succeed at that task in order to rule out some alleged cases of permissible intention as wax noses. We might, for example, imagine a case in which a physician finds in her care an unknown, indigent person with significant brain damage. Would it be morally permissible to cut this patient open, remove his vital organs and place them in five critically ill individuals, thus preserving the lives of five rather than permitting six persons to die? Of course not. In removing a patient's vital organs one aims at that person's death, however good one's motivations, however many lives are thereby saved.
Professor Hollinger argues that the case of the twins is analogous to an ectopic pregnancy and points out that the Roman Catholic moral tradition has permitted the surgical removal of a fallopian tube in which a child is growing. Let us assume that the Catholic tradition is correct in the recognition of the ectopic pregnancy case as satisfying the requirements of double effect. Is the case of Mary and Jodie really analogous?
In the case of the ectopic pregnancy, the death of the fetus does not save the life of her mother. We could imagine a removal of the fallopian tube in which the fetus lives and the immediate transfer of the fetus to an artificial womb in which the baby might develop through "birth." Unlikely, indeed, but possible. It is not unreasonable, thus, to consider the death of the fetus an undesirable effect rather than the means to the mother's preservation in the removal of the fallopian tube.
We cannot think of the surgical removal of Mary analogously. Mary has no functioning heart and lungs. To surgically separate the twins is, thus, to separate Mary from the function of vital organs. We cannot imagine a human being living without vital organs. Thus, to aim at the separation of Mary from her vital organs is to aim at her death, to intend that she die so that her sister might live.
We ought not, therefore, describe the intention of the surgical separation of Mary from Jodie as 'not to kill, but to save the life of a human being.' As surely as refusing me access to food and water is to aim at my death, so surely is removing Mary from the vital organs she shares with Jodie to aim at her death. That is a decision her parents have rightfully refused.
Great as our duties to benefit others are, more primary are our duties not to harm. This is the insight her parents have grasped in their dark night, a truth we would do well to remember.