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REPORTABLE
IN THE SUPREME COURT OF INIDA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.232 OF 2012
Aarushi Dhasmana … Petitioner
Versus
Union of India and others … Respondents
J UD G M E N T
K.S. Radhakrishnan, J
1. We are, in this case, concerned with the fate of Saba and
Farha, Craniopagus Twins (CTs) and their survival, unless
subjected to surgical separation.
2. Saba and Farha, CTs, both female, are minors,
togetherness, of course, will not bring joy to them or to their
parents, to the family members or the people at large who
happen to see them or heard about them. The doors of this
Court have been knocked by a good Samaritan and since
thisPage 2
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Court has a fundamental duty to look after the interest of minor
children, especially when they are CTs, fighting for their lives.
We spent sleepless nights to find out a solution.
Seldom
society cares or knows the mental and psychological trauma, in
such situations, Judges undergo, especially, when they are
called upon to decide an issue touching human life, either to
save or take away.
3. We are in this case concerned with lives of two minor girls,
placed in an unfortunate, calamitous and infelicitous situation.
CTs are conjoined twins who are fused at the cramium. Medical
science says that at least 25% of the CTs may survive and can
be considered for a surgical separation, especially due to
advances in medicine, including brain imaging, neuroanaesthesia and neuro surgical techniques, but risk is always
there.
4. We were informed, both Saba and Farha had earlier
attended to by Dr. Benjmin Carson, a U.S. Specialist who had
noticed that they shared a vital blood vessel in the brain and
that Farha had two kidneys while Saba had none. Earlier also
medical experts had ruled that separating Saba and Farha
would require 5 or 6 operations over nine months, but eachPage 3
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stage held a one-in-five chance that either of the girls might
die. Consequently, the family had decided to go against any
operation, even though it was reported that crown prince of
Abu Dhabi, Sheikh Mohammed bin Zayed, offered to meet the
entire medical expenses.
5. We heard the matter on 30.7.2012 and directed the Chief
Secretary of Bihar to make arrangements to bring CTs to AIIMS,
New Delhi by an Air Ambulance. Direction was also given to
constitute a medical team to examine them and to take up
further follow up action. Arrangements were also made to take
parents along with them at the expenses of the State for their
treatment. The parents were, however, not agreeable to that
arrangement but only wanted financial assistance to look after
CTs.
6. The AIIMS medical team, New Delhi in compliance of this
Court order dated 21.8.2012 reached Patna on 21.10.2012 to
examine CTs. After examining, they submitted the following
report dated 31st October, 2012 before this Court, which reads
as under:Page 4
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“As per the Supreme Court orders in Writ Petition (Civil)
No.232 of 2012 and instructions of the AIIMS
administration, the following doctors team from AIIMS
visited Patna, Bihar on 21.10.2012 to examine the
conjoint twins Saba and Farah both female age 15 years
D/o Rabia Khatoon.
1. Prof. M.V. Padma, Professor of Neurology
2. Prof. Arvind Chaturvedi, Professor of Neuro-anaesthesia
3. Dr. S.K. Kale, Additional Professor of Neuro-surgery
After discussion with Mr. S. Luthra, Additional Solicitor
General, the report submitted earlier is elaborated as
under:
According to the brother of the patients one of the twins
does not have kidneys, and the twins between their
brain have one common sagittal sinus (biggest vein).
There is no evidence/investigation to either prove or
disprove these statements made by the brother.
1. The risk involved in the operation to separate the
conjoint twins (Craniopaguys) Saba and Farha cannot
be elaborated without investigations. The statements
made by the brother regarding kidneys and the sagittal
sinus also need extensive investigations.
2. The investigations will have to include CT scan, MRI,
MRI Angiography, 4Vessel IA DSA and investigations forPage 5
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other organ functions, and can be performed by experts
at AIIMS.
3. These investigations have their own risks.
4. The parents and the brother are not willing to take any
risk including the risk involved in investigations.
5. A detailed medical report is not possible without
investigations.
The brother and the parents handed over a written
submission requesting for financial help and palliative
care. This submission was attached in the earlier
report.
Signature Signature Signature
Prof. M.V. Padma Prof. A. Chaturvedi Dr. S.S. Kale
Prof. of Neurology Prof. of Neuro- Addl. Prof.
AIIMS, New Delhi anaesthesia, AIIMS Neuro-
New Delhi, Surgery
AIIMS, New Delhi”
7. We find when the medical team of AIIMS visited to Patna
on 21.10.2012 to examine the CTs they were served with a
letter by the mother of the CTs, Rabia Khatoon. The letter
reads as follows:
“To
The Enquiry Committee (Medical Team)
AIIMS,
New Delhi.Page 6
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Sub: Help of monthly pension for conjoint
sisters Sabaa and Farha –reg.
Sir,
It is requested that we do not want our daughters
to get operated because operation is very risky and we
do not want to take risk. There are lot of expenses
involved for my daughters – food and medicines etc. I
request that monetary help of Rs.8000/- may be given
to my each daughter. The financial condition of my
home is not good. I have big family of ten members.
We need help as we don’t have any means of livelihood.
I am sure that that you will consider my request
seriously. I will forever remain indebted to you. My one
son has been looking after both the sisters & family by
borrowing money as there is no mean of livelihood. He
is still unemployed. He may be helped in getting
employment so that both the sisters are taken care of.
Yours faithfully,
Sd/-
(Rabia Khatoon)
Moh. Samanpura, Raja Bazaar,
P.O. BP College, PS Shastri Nagar,
Distt. Patna-800014
Mob. 9308566555”
8. Above facts would clearly indicate that the medical team
of AIIMS could not make any proper investigation of the CTs.Page 7
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They opined that the investigation would involve CT Scan, MTI,
MRI angiography, 4Vessel IA DSA etc. which could be performed
only at AIIMS. They also expressed the view that those
investigations have their own risks and that since the parents
and brother were not willing to take any risk, including the risks
involved in the investigation, it would not be possible to make
detailed medical report without proper investigations of the
CTs.
9. The case of Saba and Farha give rise to various questions
about the rights of the minors, their right to life, their inter-se
rights, inherent value of lives, right to bodily integrity, balancing
of interests, best interest standards, parents views, courts’
duty, doctors duty etc. The questions raised above are interconnected and inter-related and have their roots in medical law,
family law, criminal law and human rights law. Should we go
for the best interest of Saba and Farah, or either of them? Can
a Court override the wishes of the parents when we apply the
best interest standard for saving the life of at least one?
Medical LawPage 8
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10. The AIIMS Medical Team has stated in its report dated
21.10.2012 about the risk involved in the operation to separate
Saba and Farah which according to the Medical Team can be
elaborated only after detailed investigations, at AIIMS, added to
that it has been stated that the investigations have their own
risks. The State of Bihar and the Central Government, however,
have extended their fullest support in meeting the expenses for
the surgical treatment. AIIMS have also expressed opinion that
they would carry out the investigations but for the unwillingness
of the parents and the family members. Barring a few
exceptions, as a general rule, the conduct of investigations and
performance of medical operation on a person, without his or
her consent is unlawful. In F. v. West Berkshire Health
Authority (Mental Health Act Commission intervening)
[1989] 2 All E.R. 545 at 564 Lord Goff while adopting the words
of Cardozo has stated “Every human being of adult years and
sound mind has a right to determine what shall be done with his
own body”. We are, in this case, however, concerned with two
minor girls, conjoint twins, faced with a situation where their
parental consent is not forthcoming either for investigation or
for the surgical operation.Page 9
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Right to Life:
11. Right to life is guaranteed under Article 21 of the
Constitution of India, so also the right to bodily integrity. We
are, in this case, not in a position to say, in the absence of any
medical report, as to whether both Saba and Farah could be
saved or either of them. Let us pose the following questions to
ourselves: Is it in Saba’s best interest that she be separated
from Farah? Is it Farah’s best interest that she be separated
from Saba? Both Saba and Farah are dear to us, but in a
situation where both in the absence of surgical separation
might die, and in case of a surgical operation, one would
survive, is there not a duty on the Court to save at least one.
12. There can also be conflict of interests between the CTs
that is Saba and Farha, in such situation the Court has to adopt
a balancing exercise to find out the least detrimental
alternative. We are not in a position to undertake that exercise
in the instant case, because there is no medical report before
us stating that if CTs are subjected to surgical operation, one of
them might survive. If there is an authentic medical report
before us that the life of one could be saved, due surgicalPage 10
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operation, otherwise both would die, we would have applied the
“least detrimental test” and saved the life of one, even if
parents are not agreeable to that course. Every life has an
equal inherent value which is recognised by Article 21 of the
Constitution and the Court is duty bound to save that life.
Parents consent and duty of the Court
13. Both, parents, as well as the brother are against shifting
Saba and Farah to AIIMS, New Delhi for further investigation
and also for further surgical operation. They believe, the same
is risky and both might not survive. In Gillick v. West Norfolk
and Wisbech Area Health Authority (1985) 3 All E.R. The
Court held that “the common law has never treated the
parental rights and powers as sovereign or beyond review or
control.
14. We may also refer to an off-repeated passage of Bingham
MR in Re Z (a minor) (freedom of publication) [1995] 4 All ER
961 at 986:
“I would for my part accept without reservation that
the decision of a devoted and responsible parent
should be treated with respect. It should certainly not
be disregarded or lightly set aside. But the role of the
court is to exercise an independent and objectivePage 11
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judgment. If that judgment is in accord with that of
the devoted and responsible parent, well and good. If
it is not, then it is the duty of the court, after giving
due weight to the view of the devoted and
responsible parent, to give effect to its own judgment.
That is what it is there for. Its judgment may of
course be wrong. So may that of the parent. But
once the jurisdiction of the court is invoked its clear
duty is to reach and express the best judgment it can.
That is the law. That is what governs my decision.
That is what I am desperately trying to do. I do not
discern any very significant difference between the
law, as set out above, and the Archbishop’s fifth
overarching moral consideration which he expresses
in these terms:
“Respect for the natural authority of parents requires
that the courts override the rights of parents only
when there is clear evidence that they are acting
contrary to what is strictly owing to their children.”
15. Saba and Farah are now wards of this Court and we are
exercising Wardship Jurisdiction as well. Law of this land has
always recognised the rights of parents with their wards/minors
and first and foremost consideration of the Court is “welfare of
the children”, which overrides the views or opinions of thePage 12
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parents. In Re B (a minor) (wardship: medical treatment)
[1981] (1990 3 ALL E.R. 927 was a case where a child was born
suffering from Down’s Syndrome and an intestinal blockage,
required an operation to relieve the obstruction if she was to
live more than a few days. Doctor opined that if the operations
were performed, the child might die within a few months but it
was probable that her life expectancy would be 20 to 30 years.
Parents, though, it would be kinder to allow her to die rather
than live as a physically and mentally disabled person,
consequently, refused to consent for the operation. The local
authority made the child a ward of court and when a surgeon
decided that the wishes of the parents should be respected,
they sought an order authorising the operation to be performed
by other named surgeon. Lord Templeman said:
“Counsel for the parents has submitted very
movingly…. That this is a case where nature has made
its own arrangements to terminate a life which would
be fruitful and nature should not be interfered with. He
has also submitted that in this kind of decision the
views of responsible and caring parents, as these are,
should be respected, and that their decision that it is
better for the child to be allowed to die should be
respected. Fortunately or unfortunately, in this
particular case the decision no longer lies with thePage 13
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parents or with the doctors, but lies with the court. It is
a decision which of course must be taken in the light of
the evidence and views expressed by the parents and
the doctors, but at the end of the day it devolves on this
court in this particular instance to decide …..’ 1990 (3)
All E.R. 927 at 929.
Lord Dunn also said:
“I have great sympathy for the parents in the
agonising decision to which they came. As they put it
themselves: “God or nature has given the child a way
out.” But the child now being a ward of court,
although due weight must be given to the decision of
the parents which everybody accepts was an entirely
responsible one thing what they considered was the
best, the fact of the matter is that this court now has
to make the decision. It cannot hid behind the
decision of the parents or the decision of the doctors;
and in making the decision of this court’s first and
paramount consideration is the welfare of this
unhappy little baby.” (1990) 3 All E.R. 927 at 929.
16. We are faced with the same situation in this case, since
Saba and Farah’s parents are against carrying on any
investigation as well as surgical operation but, being Saba and
Farah are ward of this Court, this Court has got a responsibility
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to find out whether it is possible to save both and if not, at least
one, for which investigations are necessary.
17. We are adopting such standards because each life has an
inherent value in itself and the right to life guaranteed under
Article 21 of the Constitution is of general nature to apply to
both Saba and Farah. But what about the inherent value of life
of one, who can survive due to surgical separation. Is it not
necessary to save inherent value of the ward who may survive
not the other. Intrinsic value of both Saba and Farah is equal,
but when medical investigation is carried on, a balance sheet
has to be drawn up of the advantages and disadvantages which
flow from the performance or the non-performance of a surgical
treatment. If the balance shifts heavily in favour of one, that
has to be accepted, otherwise, both will sink and die.
Lack of Medical Report
18. We are, in this case, concerned with a situation
where a
proper medical investigation could not be carried out by the
medical team of AIIMS, mainly, because of the parental
opposition. What they wanted is financial help for the
maintenance of both Saba and Farah. Financial help, of course,
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has to be extended to them since parents are coming from poor
circumstances, but when the lives of both are stake, can we not
save the life of at least one.
Medical team of AIIMS could not
come out with a solution, as already indicated, they were
apprehensive of the fact that the investigations had their own
risk and had also opined that detailed medical treatment would
be possible only after thorough investigation.
19. We are sorry to note that nobody is concerned with the
pain and agony CTs are undergoing, not even the parents, what
they want is financial help as well as palliative care. No positive
direction can be given in the absence of an expert medical
opinion indicating that either of them can be saved due to
surgical operation or at least one. Considering the facts and
circumstances of this case, we are, however, inclined to give
the following directions:
1. Civil Surgeon, Medical Centre, Patna should periodically carry
on the medical examination of both Saba and Farah and
send periodical reports, at least quarterly to AIIMS and AIIMS
would make their own suggestion based on the investigation
which is being conducted by the medical team from Patna.
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2. The State of Bihar is directed to meet the complete medical
expenses for the treatment of both Saba and Farah and also
would pay a consolidated amount of Rs.5,000/- monthly to
look after both Saba and Farah.
3. CTscondition as well as the treatment given to them be
reported to this Court every six months.
4. The State of Bihar is directed to move this Court for further
directions, so that better and more scientific and
sophisticated treatment could be extended to Saba and
Farah.
With these directions, this writ petition is disposed of.
..………………………..J.
(K.S. Radhakrishnan)
………………………….J.
(Dipak Misra)
New Delhi,
April 10, 2013
