Judges have a difficult job. Author Ian McEwan has a long piece where he looks at cases in the UK where the law intersected with religious beliefs. He focuses on the decisions by one appeals court judge Sir Alan Ward who seems to be a remarkably humane and thoughtful judge and how he handled two cases where he had to go against the beliefs of families and the religious institutions they belonged to.
One case involved a pair of conjoined twins.
Untreated, both would die. Separated, the weaker must perish, for it had a failing heart, virtually no brain and “no lungs to cry with”. Only its healthier sibling kept it alive by way of their shared circulatory system. And slowly, the weak baby was sapping the strength of the strong. The hospital wanted to operate to save the viable child, but surgery would involve deliberately killing its twin by severing an aorta. The parents objected for religious reasons: God gave life; only God could take it away. Public interest was intense.
On the face of it, a simple moral premise: one rescued and flourishing child is better than two dead. But how was the law to sanction murder, and set aside the insistence of the parents, endorsed by the then Roman Catholic Archbishop of Westminster, that both children should be left to die?
Just as religion and religious passion and disputes have pervaded domestic and international politics to an extent we could not have predicted 20 years ago, so they have vigorously entered, or re-entered, the private realm, and therefore the family courts. In the case of the conjoined twins, Ward ruled against the parents and for the hospital. But it was, as the nice legal term has it, “an anxious question”. The operation went ahead, the weaker baby died (or, as the then Archbishop of Westminster might have put it, was judicially murdered), while its sibling underwent extensive reconstructive surgery and flourished.
For us without religious shackles, this case seems agonizing but fairly straightforward, agonizing because it involves taking an action that would result in one child dying, something that most people, religious or not, will find troubling and hard to do.
The other case seems more straightforward and involved a child of Jehovah’s Witnesses who had leukemia where the hospital staff were convinced that he needed a blood transfusion to survive but that was prohibited by that religion. Their website explains the reasons.
This is a religious issue rather than a medical one. Both the Old and New Testaments clearly command us to abstain from blood. (Genesis 9:4; Leviticus 17:10; Deuteronomy 12:23; Acts 15:28, 29) Also, God views blood as representing life. (Leviticus 17:14) So we avoid taking blood not only in obedience to God but also out of respect for him as the Giver of life.
All those passages are prohibitions against eating blood or food that contains blood and Jehovah’s Witnesses in 1945 introduced a new doctrine that extended that prohibition to the introduction of any blood products into one’s system even via transfusions. While they have promoted the use of bloodless surgery as an alternative, I am not sure whether it can be used in all circumstances.
While an adult has the right to refuse medical treatment, a child does not have that right even if the child and the parents agree on it. The state is deemed to have an overriding interest in the health of a child. The matter came before judge Ward as a matter of life or death and in the middle of the hearing, he took the extraordinary step of suspending the proceedings and going to visit the boy in hospital.
He suspended proceedings, crossed London in a taxi, met the loving, anxious parents, then sat at the boy’s hospital bedside for an hour. Among many other things, they talked about football, which was the lad’s passion. Later that evening, the judge returned to the Courts of Justice to give his decision. He “set aside” his ward’s and the parents’ articulately expressed refusal of a blood transfusion and ruled for the hospital. The child’s welfare was his paramount consideration.
Months later, Ward took the boy (now in good health) and his father to a football match, which they watched from the directors’ box. The young man was able to meet his football heroes. The gleam of joy in his eyes, his excitement at being alive, was a sight the judge would never forget. The court’s decision was vindicated.
But this story does not have a happy ending.
A few years later the young Witness was readmitted to hospital and needed another blood transfusion. By then, he was old enough to make an independent decision. He refused treatment and died for his beliefs.
I sometimes wonder about the aftermath of such cases. As long as the parents of the dead child remain steadfast believers, they may be able to live with the death as god’s will or even an act of martyrdom. But what if a parent later becomes a nonbeliever? How could they possibly live with the fact that their dogma-based decision led to their child’s death?
I would be curious to see whether there have been any studies of people whose children have died as a result of their decision to withhold treatment and whether they lost their faith subsequently. My guess is that their child’s death will make them even more steadfast believers and refuse to contemplate nonbelief because the consequences would be too hard to deal with.