APPLYING THE BEST INTEREST OF THE CHILD PRINCIPLE TO SEPARATION OF CONJOINED TWINS. PDF

Preview

Summary

A DISSERTATION SUBMITTED TO THE UNIVERSITY OF ZAMBIA IN PARTIAL FULFILMENT FOR THE REQUIREMENTS OF BACHELOR OF LAWS...

Description

APPLYING THE BEST INTEREST OF THE CHILD PRINCIPLE TO SEPARATION OF CONJOINED TWINS.

BY TAZANA SIMUTUNDA (11082798)

A DISSERTATION SUBMITTED TO THE UNIVERSITY OF ZAMBIA IN PARTIAL FULFILMENT FOR THE REQUIREMENTS OF BACHELOR OF LAWS

UNZA

2019

COPYRIGHT DECLARATION

I Tazana Simutunda, computer number 11082798 do hereby declare that this dissertation presents my own work and that to the best of my knowledge, no similar piece of work has been previously submitted for the award at this University or another University. Where work of another scholar has been used, it has been duly acknowledged. All rights reserved. No part of this paper shall be reproduced or reprinted without the author‟s prior authorization.

………………………

………………………..

.............................. Student‟s signature Date

Date

ii

THE UNIVERSITY OF ZAMBIA SCHOOL OF LAW

I recommend that the directed research under my supervision

By TAZANA SIMUTUNDA

Entitled APPLYING THE BEST INTEREST OF THE CHILD PRINCIPLE TO SEPARATION OF CONJOINED TWINS. Be accepted for examination. I have checked it carefully and I am satisfied that it fulfils the requirement pertaining to the format as laid down in the regulations governing directed research

………………………………

………………………...

DR. FATIMA MANDHU

DATE

SUPERVISOR

iii

DEDICATION I dedicate this work to the Almighty God, the Loving Father, the God of liberation, the God of Bishop David O. Oyedepo who helped me throughout my years in tertiary education. All the glory to Him alone. When it looked as if it was over for me, My Lovely Lord made a way and I am standing here because he made a way for me. I thank you my helper.

iv

ACKNOWLEGDMENT I would live to acknowledge a lot of people that played a role in making sure that the dream of my success in my academics was made a reality. I would love to first of all appreciate my mother, Mrs Chidinma Joy-Grace Omeonu Kingsley, for the spiritual and parental guidance she gave to me all throughout the days of my academic time, from the time I began to experience some challenges to the victory. Mummy, I love you and thank you so much. You mean a lot to me. To my daddy Pastor Kingsley, the man sent to help my destiny reshape, sir am truly humbled, thank you. My biological family, my mom and dad, having left us years ago, this could have made you happy and smiling. Amongst the three children you had, you placed so much pressure on me, concerning school, all those beatings I used to get from you when I refused to go to school in my early days, and this is the result. I love you mum and dad. To my siblings, Precious my own elder sis and Teza, my own brother, I am privileged by grace to reach this level in life because you also played a role. May this be an example and a point of good reference to your children and let them aim higher to achieve more than what I have achieved so far. I love you both To my special family, the spiritual family, many experiences and struggles I have not shared with the world not even my biological family that I have shared with you. Thanks to God for the love, the prayers, the care, the meetings we have had. Several times I lost hope and almost gave up on school, but you were there by my side, encouraging me. Thank you Paul, Gift, Nicholas, Joy, Mary, Mutinta, Monica, Melbone, Adrian, Henda, Natasha, Mwamba, Nanzila, Gerald and Tumba. To destiny helpers, men and women that God used to see that my academics was stress free. The financial and moral support you gave to me. am truly grateful. Thank you Pastor Adeleye Ogbonyomi, Pastor Ben Andrew, Deaconess Mankolo Beyani, Mr Musenge and many others. Am really grateful. To my lecturers that helped me when I had a mental challenge and could not cope with school and the pressure, you saw the challenge and came through to help me, am really grateful. Thank you Dr Fatima Mandhu, for supervision, the care, the medications and also notifying the school concerning my condition. Thank you Mrs C. Nkhata, who believed in me. Dr PT Sambo and Dr Kaaba for the topic. Am grateful

v

ABSTRACT The purpose of this research is to do an appraisal of the application of the best interest of the child principle pertaining to separation of conjoined twins. The main objectives of this research include: to explain the law pertaining to separation of conjoined twins; to analyse what factors courts consider before separating conjoined twins; to discuss how the best interest of the child principle can be applied when separating the conjoined twins, and to analyse the best interest of the child principle. The research focused on various case law, ethical principles and law applicable in regulating the separation of conjoined twins. Various international instruments were reviewed to understand how the best interest of the child principle can be applied. This research was important because, it is not clear as to what law regulates the procedure to separate the conjoined twins. The question to be answered is how the best interest of the child principle can be used in separation of conjoined twins and also not clear as to who is mandated to make the final decision over the health of the twins. The research revealed that the term best interest of the child is not universal and this brings a challenge in applying it to cases of conjoined twins. One of the major factors causing inconsistency when applying the law and the ethical principles to the separation of conjoined twins is that each pair of conjoined twin are differently joined. This means that the principles that have to be applied are on a case to case basis. Various issues stated in the research have shown the absence of the law, ethics and principles that are directly pointing to the issues affecting the separation of conjoined twins. This research was undertaken by making reference to different use of pertinent publications, case law and different types of laws including international conventions and guidelines. Furthermore, the research considered views and arguments of various authors‟ text from books, journal articles and other relevant reports on the subject matter The research recommends that medical ethics, principles and laws be enacted to have some guidance on issues of conjoined twins. The medical ethics, principles and laws on who must have a final say over the separation of the twins must be provided in the legislation. The issue of whether one twin must be killed to save another twin where circumstances indicate only one can survive must be addressed for future cases that may arise. There should be a clear guidance on the steps to be taken when parents refuse consent on the separation of the twins and how doctors should act in such a decision. There must be a mechanism of handling such matters when they arise, not only on conjoined twins but other related issues of medical ethics concerning children generally and twins in particular. It is further recommended that there must be some guidelines to help apply the best interest of the child principle so as to protect the conjoined twins when faced with conflicting interest concerning their health and lives.

vi

TABLE OF STATUTES African Charter on the Rights and Welfare of the Child (ACRWC), OAU Doc CAB/ LEG/24.9/49 (1990) entered into force 29 November 1999. European Convention on Human Rights, as amended by Protocols Nos. 11 and 14 supplemented by Protocols Nos. 1, 4,6, 7, 12, 13 and 16 International Covenant on Civil and Political Rights (ICCPR), 1966 The Geneva Declaration of the Rights of the Child of 1924 The Constitution of Zambia, 1991 as Amended by the Constitution of Zambia (Amendment) Act, 2016 Declaration of the Rights of the Child adopted on 26 September 1924 (League of Nations) UN Convention on the Rights of the child (UNCRC).

vii

TABLE OF CASES Airedale NHS Trust v Bland [1993] AC 789 Birmingham City Council v H (A Minor) [1994] 2 AC 212 *243 F v West Berkshire Health Authority and another, [1989] 2 All E.R. 545 (H.L.) at 563-564 per Lord Goff Gillick v West Norfolk and Wisbech Area Health Authority and another, [1985] 3 All E.R. 402 (H.L.) at 432 per Lord Templeman In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 In re F [1990] 2 AC 1, 74 In Re J (A Child) hl 16 June 2005 J v C (1970) AC 668 Mponda v Mponda Appeal No. 199/2015) [2018] ZMSC 350 (13 March 2018) Painter v Bannister 140 N.W.2d 152 (Iowa 1966). Troxel v Granville 530 US 57; 120 S Ct 2054; 147 Led2d 49 (2000) W v W [1972] AC 24, 43

viii

TABLE OF CONTENTS CONTENTS

PAGE

Title. ............................................................................................................................................i Copyright Declaration ................................................................................................................ii Aproval .................................................................................................................................... iii Dedication .................................................................................................................................iv Acknowlegdment ....................................................................................................................... v Abstract .....................................................................................................................................vi Table of statutes .......................................................................................................................vii Table of cases ......................................................................................................................... viii Chapter One: Introduction 1.1 Introduction ...................................................................................................................... 1 1.2 Background ...................................................................................................................... 1 1.3 Statement of the problem ................................................................................................. 4 1.4 Research objectives .......................................................................................................... 5 1.5 Research questions ........................................................................................................... 5 1.6 Significance of the study .................................................................................................. 5 1.7 Literature review .............................................................................................................. 6 1.8 Methodology .................................................................................................................. 11 1.9 Outline of chapters ......................................................................................................... 12 1.10 Conclusion .................................................................................................................... 12 Chapter Two: An Appraisal Of The Best Interest Of The Child Principle 2.1 Introduction ................................................................................................................ 13 2.2 Background to the principle of the Best Interest of the Child .................................... 13 2.3 Definition of what is the Best Interest of the Child .................................................... 15 2.4 The Rationale behind the Best Interest of the Child Principle ................................... 17 2.5 Interpretation of the Best Interest of the Child Principle............................................ 19 2.6 Challenges faced when applying the Best Interest of the Child Principle.................. 22 2.7 Conclusion .................................................................................................................. 24 Chapter Three: The Law And Principles Applicable To Separation Of Conjoined Twins 3.1 Introduction .................................................................................................................... 25

ix

3.2 The International Instruments applicable to separation of Conjoined Twins ................ 25 3.3 Regional Instruments and the application of the Best Interest of the Child Principle ... 29 3.4 The general legal and ethical principles applicable to sepatation of Conjoined Twins . 30 3.5 Conclusion ...................................................................................................................... 34 Chapter Four: Factors Considered when Separating Conjoined Twins and how the Best Interest of a Child Principle can be Applied 4.0 Introduction .................................................................................................................... 36 4.1 Factors that need to be Considered when Separating Conjoined Twins ........................ 36 4.1.1 Parental or guardian consent.................................................................................... 38 4.1.2. The Role of Medical Personnel .............................................................................. 40 4.1.3 The Position of the Courts in Decision Making ...................................................... 40 4.2 Considerations made when Separating Conjoined Twins .............................................. 41 4.3 The Best Interest of a Child Principle and Separation of Conjoined Twins .................. 42 4.4 Conclusion ...................................................................................................................... 44 Chapter Five: Conclusion and Recommendations 5.1 Introduction .................................................................................................................... 46 5.2 Conclusions .................................................................................................................... 46 5.3 Recommendations .......................................................................................................... 49 Bibliography ............................................................................................................................ 51

x

CHAPTER ONE INTRODUCTION 1.1 INTRODUCTION The purpose of this research is to do an appraisal of the application of the best interest of the child principle pertaining to separation of conjoined twins. The research will examine and explain what the interest of the child principle is and show its importance to the procedure vis-à-vis the separation of the conjoined twins. The research will then look at what law supports the separation of the conjoined twins. It will also look at any guiding principles which are relevant and applicable when it comes to the separation of conjoined twins. The research will then analyze what factors should be considered when separating the conjoined twins. Followed by critically looking at how the best interests of a child principle can be applied when separating the twins. The research will further give recommendations. 1.2 BACKGROUND Cases of parents giving birth to conjoined twins are not quite common, when one case is recorded; a lot of attention is accorded because many medical procedures and decisions are involved. Parents and doctors have difficult decisions in ensuring that the life of the twins is protected and preserved. Those vested with power to make decisions over children are increasingly obligated by law to act in the child's best interests.1 In looking at records of conjoined twins in Zambia, in February, 2018, surgeons successfully separated seven months‟ old conjoined twins in an innovative operation in Lusaka, Zambia.2 The surgery was conducted at the Women and New Born hospital in Lusaka.3 A crew of 30 health

th

1

“The Best Interests of the Child - Principles and Problems, 1994”, Stephen Parker, Accessed February 10 , 2019, https://www.researchgate.net/publication/31264515_the_best_interests_of_the_child_-principles_and_problems 2 “Conjoined Zambian twins start life apart after historic surgery, 02/02/2018”, Abdur Rahman Alfa Shaban , accessed th February 10 , 2019 https://www.africanews.com/2018/02/02/conjoined-zambian-twins-start-life-apart-after-historicsurgery// 3 “Conjoined Zambian twins start life apart after historic surgery, 02/02/2018”, Abdur Rahman Alfa Shaban , accessed https://www.africanews.com/2018/02/02/conjoined-zambian-twins-start-life-apart-after-historic-surgery//

1

professionals conducted a surgery on the twins who were joined at the abdomen and also shared a liver. Reports state that the surgery took seven hours to separate the twins before the doctors left the operating theatre.4 The chief surgeon Bruce Vulani, one of the team of health experts indicated that the twins who at the time were 3 months old could only be separated after six months to allow for more skin to grow on their tummies where they were joined.5 The twins were recognized as omphalapogus twins, a rare kind of birth in Zambia and that the major cause is partial division of one fertilized ovum. Omphalopagus are twins who are joined from the breastbone to the waist and account for about 33% of all conjoined cases in the world.6 In considering case law relating to conjoined twins, there is little litigation in Zambia. Cases outside the Zambian jurisdiction, which are of persuasive value only, can be noted. In the case of Queensland v. Nolan7, the matter went before the court to obtain a declaration for a medical surgery to separate the conjoined twins Alyssa Grace Nolan and Bethany Rose Nolan to be made lawful in view of saving the life of Alyssa Grace Nolan 8. The conjoined twins shared a vein but had separate brains. Bethany lacked a working renal tract to eliminate waste products from her circulation causing her to depend on Alyssa for existence. Eventually, Bethany developed pulmonary edema and cardiac failure, which resulted in her death within 24 hours.9 There was clear evidence concluding that her death meant that the other twin also dies and surgical separation was the only decision leading to their survival with a 20% to 40% likelihood of surviving the medical operation for Alyssa, on the other hand, Bethany death was unavoidable.10 Therefore, in

4

“Conjoined Zambian twins start life apart after historic surgery, 02/02/2018”, Abdur Rahman Alfa Shaban , accessed https://www.africanews.com/2018/02/02/conjoined-zambian-twins-start-life-apart-after-historic-surgery// 5 “Conjoined Zambian twins start life apart after historic surgery, 02/02/2018”, Abdur Rahman Alfa Shaban, accessed https://www.africanews.com/2018/02/02/conjoined-zambian-twins-start-life-apart-after-historic-surgery// 6 “Conjoined Zambian twins start life apart after historic surgery, 02/02/2018”, Abdur Rahman Alfa Shaban, accessed https://www.africanews.com/2018/02/02/conjoined-zambian-twins-start-life-apart-after-historic-surgery// 7 Queensland v. Nolan, Supreme Court of Queensland: Chesterman J. [2001]. 8 Queensland v. Nolan, Supreme Court of Queensland: Chesterman J. [2001]. 9 Queensland v. Nolan, Supreme Court of Queensland: Chesterman J. [2001]. 10 Queensland v. Nolan, Supreme Court of Queensland: Chesterman J. [2001].

2

this situation, the plan for Bethany, the fragile twin was terrible for just in hour‟s weather the separation will be done, she would still die. Thus, only Alyssa would benefit from the surgery.11 In Re A (Conjoined Twins) 12is another a legal and ethical problem surrounding twin sacrifice which was also seen in the separation of conjoined twins, Mary and Jodie who were joined at the pelvis with four legs and integrated spinal cords.13 The weaker twin, Mary was totally depending on her twin Jodie for existence and was almost seen to possess unbalanced brain and cardiorespiratory systems with a narrow life period even as a conjoined twin. By conducting surgic...