Square Pegs in Round Holes: The Dilemma of Conjoined Twins and Individual Rights
| Published date | 01 December 2001 |
| DOI | 10.1177/a020306 |
| Author | Vanessa E. Munro |
| Date | 01 December 2001 |
| Subject Matter | Articles |
SQUARE PEGS IN ROUND
HOLES: THE DILEMMA
OF CONJOINED TWINS AND
INDIVIDUAL RIGHTS
VANESSA E. MUNRO
University of Reading, UK
ABSTRACT
The judgment in the English Court of Appeal case of Re A (Conjoined Twins: Surgi-
cal Separation) highlights forcefully the highly individualistic and abstract assump-
tions that commonly shape the deployment of rights discourse in liberal legal
adjudication. Forced by the all-or-nothing nature of this discourse into a dilemma
between perceiving of the twins as separate right-bearers or perceiving of the stronger
twin, Jodie, as the singular right-bearer and of Mary, her weaker sibling, as a non-legal
entity, the court chose the former option.
Perceiving of the twins as distinct and equal legal persons forced the court to
employ a balancing of incommensurate interests, implicitly accepting a utilitarian
analysis within the strongly deontological confines of law and medicine. The impli-
cations of this turn towards utilitarianism are significant. Within the confines of this
article, it will be argued, however, that these implications are avoidable if the law con-
cedes a more flexible approach to the dominant notion of the distinct and autonomous
right-bearer.
INTRODUCTION
Despite the increasing centrality afforded to rights analysis within western
liberal legal jurisdictions, considerable scepticism remains regarding the pre-
sumptions of individualism and abstraction that underlie this dominant legal
strategy. This article re-examines the legitimacy of that scepticism in light of
the application of rights discourse in the English Court of Appeal case of Re
A (Children) (Conjoined Twins: Surgical Separation).
The ability of rights discourse and analysis to politicize contentious issues
and to provide protection to the individual against state intervention has been
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illustrated repeatedly in liberal legal history and can barely be disputed. The
discriminatory application of the averred hallmarks of the liberal system,
namely tolerance and equality, has frequently been uncovered and remedied
through the invocation of rights-based strategies. Such strategies were central
to the historical successes enjoyed by the Black civil rights movement and the
Suffragette movement, and they continue to be a crucial aspect of the legal
armoury of contemporary political lobbyists.
However, many critical commentators (for example Rhode, 1986 and
Kingdom, 1995) have voiced significant concerns regarding the extent to
which the liberal tendency to uncritically assume the applicability of domi-
nant rights analysis in all contexts represents a dangerous conceptual move.
While acknowledging the merits of rights discourse as a tool of political dia-
logue, such commentators emphasize the need to maintain a critical aware-
ness of the biases inherent in the ascription of rights and in the determination
of rights-based claims (Minow, 1987).
Inherent in prevailing rights analysis (Rawls, 1993) is an emphasis upon the
necessarily individual nature of the rights-bearer, and upon the relevance of
rights as a mechanism for providing boundaries between one’s interests and
those of another. For many critical theorists, however, the individualism
and abstraction thus manifest in the dominant liberal notion of rights is
problematic, fostering a drive towards separation and radically dislocated
autonomy which denies the complexities of human relationships and
identity formation (MacKenzie and Stoljar, 2000). Central to this drive
towards individualism and abstraction is an implicit understanding of the
legal person as a distinct and separate body with ascertainable boundaries
and bodily confines (Nedelsky, 1989).
Building upon that assertion, this article will illustrate the profound incom-
patibility of such analysis with those contexts in which the realities of
embodiment render the achievement of the radical autonomy assumed by
liberal rights at best artificial and at worst unattainable. In particular, this
article will examine the legitimacy of these assumptions in the context of con-
joined twins, where the physical connection involved graphically undermines
the persuasiveness of legal strategies premised upon the delineation of
relevant boundaries between one rights-bearer and another.
In highlighting the tension inherent in the application of the abstract and
individualist assumptions of rights discourse to the specific context of con-
joined twins, this article will also examine the failure of the dominant deon-
tological approach to fulfil its averred role of protecting designated legal
persons against utilitarian impulses. The ideological and rhetorical strength
of rights-based analysis lies in its ability to privilege the interests of the indi-
vidual over impinging dictates of the common good. Nonetheless, in contexts
where the subjects involved defy conventional separation, this ability is com-
promised and this rhetoric is betrayed. Most observably in the case of con-
joined twins, it will be argued that prevailing analysis is ill-equipped to
resolve the stalemate encouraged by the inherently conflictual operation of
competing rights claims without the invocation of a utilitarian resolution.
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