The Children Act

by Ian Mcewan

  Mark was sucking normally, feeding and breathing for both, doing “all the work” and therefore abnormally thin. Matthew, with nothing to do, was gaining weight. Left alone, Mark’s heart would sooner or later fail from the effort, and both must die. Matthew was unlikely to live more than six months. When he died, he would take his brother with him. A London hospital was urgently looking for permission to separate the twins to save Mark, who had the potential to be a normal healthy child. To do so, surgeons would have to clamp, then sever the shared aorta, so killing Matthew. And then begin a complicated set of reconstructive procedures on Mark. The loving parents, devout Catholics living in a village on Jamaica’s north coast, calm in their belief, refused to sanction murder. God gave life and only God could take it away.

  In part, her memory was of a prolonged and awful din assaulting her concentration, a thousand car alarms, a thousand witches in a frenzy, giving substance to the cliché: the screaming headline. Doctors, priests, television and radio hosts, newspaper columnists, colleagues, relations, taxi drivers, the nation at large had a view. The narrative ingredients were compelling: tragic babies, kindhearted, solemn and eloquent parents in love with each other as well as their children, life, love, death and a race against time. Masked surgeons pitched against supernatural belief. As for the spectrum of positions, at one end were those of secular utilitarian persuasion, impatient of legal detail, blessed by an easy moral equation: one child saved better than two dead. At the other stood those of not only firm knowledge of God’s existence but an understanding of his will. Quoting Lord Justice Ward, Fiona reminded all parties in the opening lines of her judgment, “This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us—a situation which is unique.”

  In this dire contest there was only one desirable or less undesirable outcome, but a lawful route to it was not easy. Under pressure of time, with a noisy world waiting, she found, in just under a week and thirteen thousand words, a plausible way. Or at least the Court of Appeal, working to an even harsher deadline on the day after she delivered her judgment, seemed to suggest she had. However, there could be no presumption that one life was worth more than another. Separating the twins would be to kill Matthew. Not separating them would, by omission, kill both. The legal and moral space was tight and the matter had to be set as a choice of the lesser evil. Still, the judge was obliged to consider what was in Matthew’s best interests. Clearly not death. But nor was life an option. He had a rudimentary brain, no lungs, a useless heart, was probably in pain and condemned to die, and soon.

  Fiona argued, in a novel formulation which the Court of Appeal accepted, that Matthew, unlike his brother, had no interests.

  But if the lesser evil was preferable, it might still be unlawful. How was murder, cutting open Matthew’s body to sever an aorta, to be justified? Fiona rejected the notion urged on her by the hospital’s counsel, that separating the twins was analogous to turning off Matthew’s life-support machine, which was Mark. The surgery was too invasive, too much of a trespass on Matthew’s bodily integrity, to be considered a withdrawal of treatment. Instead, she found her argument in the “doctrine of necessity,” an idea established in common law that in certain limited circumstances, which no parliament would ever care to define, it was permissible to break the criminal law to prevent a greater evil. She referred to a case in which men hijacked a plane to London, terrorized the passengers and were found innocent of any crime because they were acting to avoid persecution in their own country.

  Regarding the all-important matter of intent, the purpose of the surgery was not to kill Matthew but to save Mark. Matthew, in all his helplessness, was killing Mark and the doctors must be allowed to come to Mark’s defense to remove a threat of fatal harm. Matthew would perish after the separation not because he was purposefully murdered, but because on his own he was incapable of flourishing.

  The Court of Appeal agreed, the parents’ appeal was dismissed and two days later, at seven in the morning, the twins entered the operating theater.

  The colleagues Fiona valued most sought her out to shake her hand, or wrote the kind of letters worth saving in a special folder. Her judgment was elegant and correct, was the insiders’ view. Reconstructive surgery on Mark was successful; public interest faded and moved on. But she was unhappy, couldn’t leave the case alone, was awake at nights for long hours, turning over the details, rephrasing certain passages of her judgment, taking another tack. Or she lingered over familiar themes, including her own childlessness. At the same time, there began to arrive in small pastel-colored envelopes the venomous thoughts of the devout. They were of the view that both children should have been left to die and were not pleased by her decision. Some deployed abusive language, some said they longed to do her physical harm. A few of those claimed to know where she lived.

  Those intense weeks left their mark on her, and it had only just faded. What exactly had troubled her? Her husband’s question was her own, and he was waiting for an answer now. Before the hearing she had received a submission from the Roman Catholic archbishop of Westminster. In her judgment she noted in a respectful paragraph that the archbishop preferred Mark to die along with Matthew in order not to interfere with God’s purpose. That churchmen should want to obliterate the potential of a meaningful life in order to hold a theological line did not surprise or concern her. The law itself had similar problems when it allowed doctors to suffocate, dehydrate or starve certain hopeless patients to death, but would not permit the instant relief of a fatal injection.

  At nights her thoughts returned to that photograph of the twins and the dozen others she had studied, and to the detailed technical information she had heard from medical specialists on all that was wrong with the babies, on the cutting and breaking, splicing and folding of infant flesh they must perform to give Mark a normal life, reconstructing internal organs, rotating his legs, his genitals and bowels through ninety degrees. In the bedroom darkness, while Jack at her side quietly snored, she seemed to peer over a cliff edge. She saw in the remembered pictures of Matthew and Mark a blind and purposeless nullity. A microscopic egg had failed to divide in time due to a failure somewhere along a chain of chemical events, a tiny disturbance in a cascade of protein reactions. A molecular event ballooned like an exploding universe, out onto the wider scale of human misery. No cruelty, nothing avenged, no ghost moving in mysterious ways. Merely a gene transcribed in error, an enzyme recipe skewed, a chemical bond severed. A process of natural wastage as indifferent as it was pointless. Which only brought into relief healthy, perfectly formed life, equally contingent, equally without purpose. Blind luck, to arrive in the world with your properly formed parts in the right place, to be born to parents who were loving, not cruel, or to escape, by geographical or social accident, war or poverty. And therefore to find it so much easier to be virtuous.

  For a while, the case had left her numb, caring less, feeling less, going about her business, telling no one. But she became squeamish about bodies, barely able to look at her own or Jack’s without feeling repelled. How was she to talk about this? Hardly plausible, to have told him that at this stage of a legal career, this one case among so many others, its sadness, its visceral details and loud public interest, could affect her so intimately. For a while, some part of her had gone cold, along with poor Matthew. She was the one who had dispatched a child from the world, argued him out of existence in thirty-four elegant pages. Never mind that with his bloated head and unsqueezing heart he was doomed to die. She was no less irrational than the archbishop, and had come to regard the shrinking within herself as her due. The feeling had passed, but it left scar tissue in the memory, even after seven weeks and a day.

  Not having a body, floating free of physical constraint, would have suited her best.

  THE CLICK OF Jack’s tumbler against a glass table returned her to the room and his question. He was looking at her steadily.
Even if she’d known how to frame a confession, she was in no mood for one. Or any display of weakness. She had work to do, the conclusion to her judgment to proofread, with the angels waiting. Her state of mind was not the issue. The problem was the choice her husband was making, the pressure he was now applying. She was suddenly angry again.

  “For the last time, Jack. Are you seeing her? I’ll take your silence as a yes.”

  But he too was roused, out of his chair, walking away from her to the piano, where he paused, one hand resting on the raised lid, gathering his patience before he turned. In that moment the silence between them expanded. The rain had ceased, the oak trees in the Walks were stilled.

  “I thought I’d made myself clear. I’m trying to be open with you. I saw her for lunch. Nothing’s happened. I wanted to talk to you first, I wanted—”

  “Well, you have, and you’ve had your answer. So what now?”

  “Now you tell me what’s happened to you.”

  “When was this lunch? Where?”

  “Last week, at work. It was nothing.”

  “The sort of nothing that leads to an affair.”

  He remained at the far end of the room. “There it is,” he said. His tone was flat. A reasonable man tested to exhaustion. Amazing, the theatrics he thought he could get away with. In her time on circuit, aging and illiterate recidivists, some with very few teeth, had come before her and performed better, thinking aloud from the dock.

  “There it is,” he repeated. “And I’m sorry.”

  “Do you realize what you’re about to destroy?”

  “I could say the same. Something’s going on and you won’t talk to me.”

  Let him go, a voice, her own voice, said in her thoughts. And immediately, the same old fear gripped her. She couldn’t, she did not intend to, manage the rest of her life alone. Two close friends her age, long deprived by divorce of their husbands, still hated to enter a crowded room unaccompanied. And beyond mere social gloss was the love she knew she felt for him. She didn’t feel it now.

  “Your problem,” he said from the far end of the room, “is that you never think you have to explain yourself. You’ve gone from me. It must have occurred to you that I’ve noticed and that I mind. Just about bearable, I suppose, if I thought it wasn’t going to last, or I knew the reason why. So …”

  He was starting to come toward her at this point, but she never learned his conclusion, or let her rising irritation form a response, for at that moment the phone rang. Automatically, she picked up the receiver. She was on duty, and sure enough, it was her clerk, Nigel Pauling. As ever, the voice was hesitant, on the edge of a stutter. But he was always efficient, pleasingly distant.

  “I’m sorry to disturb you this late, My Lady.”

  “It’s all right. Go ahead.”

  “We’ve had a call from counsel representing the Edith Cavell hospital, Wandsworth. They urgently need to transfuse a cancer patient, a boy of seventeen years. He and his parents are refusing consent. The hospital would like—”

  “Why are they refusing?”

  “Jehovah’s Witnesses, My Lady.”

  “Right.”

  “The hospital’s looking for an order that it will be lawful to proceed against their wishes.”

  She looked at her watch. Just past ten thirty.

  “How long have we got?”

  “After Wednesday it will be dangerous, they’re saying. Extremely dangerous.”

  She looked around her. Jack had already left the room. She said, “Then list it for hearing on short notice at 2 p.m. on Tuesday. And give notice to the respondents. Direct the hospital to inform the parents. They’ll have liberty to apply. Have a guardian appointed for the boy with legal representation. Direct the hospital to serve evidence by 4 p.m. tomorrow. The treating oncologist should serve a witness statement.”

  For a moment her mind blanked. She cleared her throat and continued. “I’ll want to know why blood products are necessary. And the parents should use their best endeavors to file their evidence by noon on Tuesday.”

  “I’ll do it straightaway.”

  She went to the window and stared across the square, where shapes of trees were turning solid black in the last of the slow June dusk. As yet, the yellow streetlights illuminated no more than their circles of pavement. The Sunday-evening traffic was sparse now and barely a sound reached her from Gray’s Inn Road or High Holborn. Only the tap of thinned-out raindrops on leaves and a distant musical gurgling from a nearby drainpipe. She watched a neighbor’s cat down below pick a fastidious route around a puddle and dissolve into the darkness beneath a shrub. It didn’t trouble her, Jack’s withdrawal. Their exchange had been heading toward excruciating frankness. No denying the relief at being delivered onto the neutral ground, the treeless heath, of other people’s problems. Religion again. It had its consolations. Since the boy was almost eighteen, the legal age of autonomy, his wishes would be a central concern.

  Perhaps it was perverse to discover in this sudden interruption a promise of freedom. On the other side of the city a teenager confronted death for his own or his parents’ beliefs. It was not her business or mission to save him, but to decide what was reasonable and lawful. She would have liked to see this boy for herself, remove herself from a domestic morass, as well as from the courtroom, for an hour or two, take a journey, immerse herself in the intricacies, fashion a judgment formed by her own observations. The parents’ beliefs might be an affirmation of their son’s, or a death sentence he dared not challenge. These days, finding out for yourself was highly unconventional. Back in the 1980s a judge could still have made the teenager a ward of court and seen him in chambers or hospital or at home. Back then, a noble ideal had somehow survived into the modern era, dented and rusty like a suit of armor. Judges had stood in for the monarch and had been for centuries the guardians of the nation’s children. Nowadays, social workers from Cafcass did the job and reported back. The old system, slow and inefficient, preserved the human touch. Now, fewer delays, more boxes to tick, more to be taken on trust. The lives of children were held in computer memory, accurately, but rather less kindly.

  Visiting the hospital was a sentimental whim. She dismissed the idea as she turned from the window to go back to her couch. She sat down with an impatient sigh and took up her judgment in the matter of the Jewish girls from Stamford Hill and their contested well-being. Her last pages, her conclusion, were again in her hands. But for the moment she couldn’t bring herself to look at her own prose. This was not the first time that the absurdity and pointlessness of her involvement in a case had temporarily disabled her. Parents choosing a school for their children—an innocent, important, humdrum, private affair which a lethal blend of bitter division and too much money had transmuted into a monstrous clerical task, into box files of legal documents so numerous and heavy they were hauled to court on trolleys, into hours of educated wrangling, procedural hearings, deferred decisions, the whole circus rising, but so slowly, through the judicial hierarchy like a lopsided, ill-tethered hot-air balloon. If the parents could not agree, the law, reluctantly, must take the decisions. Fiona would preside with all the seriousness and obedience to process of a nuclear scientist. Preside over what had begun with love and ended in loathing. The whole business should have been handed to a social worker, who could have taken half an hour to reach a sensible decision.

  Fiona had found in favor of Judith, the fidgety ginger woman who, the clerk reported, at every break would dash across the marbled floors and through the polished stone arches of the Courts of Justice and out into the Strand to get to her next cigarette. The children should continue to attend the mixed school chosen for them by their mother. They could stay on until they were eighteen and have tertiary education if they so chose. The judgment paid respect to the Haredi community, the continuity of its venerable traditions and observances, adding that the court took no view of its particular beliefs beyond noting that they were clearly sincerely held. However, witnesses from tha
t community called by the father had helped undo his case. One respected figure had said, perhaps too proudly, that Haredi women were expected to devote themselves to making a “secure home” and that education past sixteen was not relevant. Another said it was highly unusual even for boys to enter the professions. A third had been a little too emphatic in his view that girls and boys should be kept well apart at school in order to maintain their purity. All this, Fiona had written, lay well outside mainstream parental practice and the generally held view that children should be encouraged in their aspirations. This must also be the view of the judicial reasonable parent. She accepted the social worker’s opinion that if the girls were to be returned to the closed society of the father, they would be cut off from their mother. The reverse was less likely to be the case.

  Above all, the duty of the court was to enable the children to come to adulthood and make their own decisions about the sort of life they wanted to lead. The girls might opt for their father’s or their mother’s version of religion, or they might find satisfaction in life elsewhere. Past eighteen they would be beyond the reach of parents and court. In parting, Fiona lightly rapped the paternal knuckles when she observed that Mr. Bernstein had availed himself of female counsel and solicitor, and benefited from the experience of the court-appointed social worker, the astute and disorganized Cafcass lady. And he was implicitly bound to the order of a female judge. He should ask himself why he would deny his daughters the opportunity of a profession.