According to the facts that J and M are conjoined twin, each of them has her
own brain, heart, lungs, liver, kidney, genital and four limbs; the only shared organ
is a large bladder. Apart from being conjoined twin, J is normal and capable of living
independent. On the other hand, M is weak and completely dependent on J. Their
parents give D, the doctor, a consent to do the separate surgery because if J and M’s
body still stick together they will be only survive for six months to two years but if
they do the surgery M will be immediately death and J will have a chance up to 94%
to survive. To clearly illustrate, J and M is not one person even their body is stick
together because they have their own organ except for only a bladder.
The first question asked that before the surgery, is M a human or not. M is a
human because M has a full completion of birth as a living child according to Section
15 in Thai Commercial Civil Code; personality begins with the full completion of
birth as a living child and ends with death. Even though M shared a bladder with J
and M’s body depends on J’s blood to survive because to become a person under
Section 15 in Thai Commercial Civil Code that a child en ventre sa mere is capable of
rights provided that it is thereafter born alive.
D, the doctor who did the separate surgery as a principal, the principal is that
the one who commit the criminal act. D is guilty of intentional killing under Section
289 sub section 4 in Thai Criminal Code, whoever murders any person by
premeditation shall be liable to the death penalty. Because D was murdered M in the
surgery and the act of the doctor are qualified in the elements of crime, which are
external element, internal element, causation, and justification. For the external
element, he acted with consciousness and he can reasonably foreseen the
consequence for internal element and for the causation is that the death of M is a
direct of the consequence is come from the doctor according to Section 59
paragraph state that, to act intentionally is to act consciously and at the same time
the doer desires or cloud have foreseen the effect of such doing. And the justification
of this case is that parent gives the consent to the doctor to do the separate surgery.
So, the doctor is liable for Section 289 (4) in the Criminal Code. Also, it is not
necessity for the doctor to do such surgery because the fact said that both M and J
could survive to six months to two years, which mean that it is not an imminent so,
the provision of Section 67 (2) in the Thai Criminal Code does not apply. Section 67
(2) state that, any person shall not be punished for committing any offence due to
necessity; when such person acts in order to make himself or herself or other
persons to escape from an imminent danger which is unable to avoid by other
means, and such person does not cause such danger by his or her fault. In this case,
also the provision of Section 68 in Thai Criminal Code does not apply either because
the situation in the fact given is not imminent. Section 68 state that, whoever
commits any act for the defense of his or her right or for a right of other persons so
as to avoid a danger arising from a harmful act which violates the law and such
danger is imminent, such act, if reasonably carried out under such circumstances, is
a lawful defense, and such person shall not be guilty. Therefore, the doctor is guilty
as a principal who commit the act under Section 289 (4) in Thai Criminal Code. The
doctor shall be full punishment according to the law.
The last question is asking that whether the parents are guilty of any offences
for giving consent to the doctor to do the separate surgery or not. The answer of this
question is that parents are guilty of the offence as aider not joint principal or the
principal because the consequence of such act is M died after the separate surgery
by the doctor not by themselves and The parent are not guilty as joint principal
because the parents did not at the moment the act was commit by the principal
which is a doctor. Parents are instigator according to Section 84 in Thai Criminal
Code that they gave intention to the doctor to commit the act under Section 289 (4)
in Thai Criminal Code. Section 84 said that, whoever, irrespective of whether by
employment, compulsion, threat, hire, asking for a favour, or instigation, or by any
other means, causes another person to commit any offence, is said to be an
instigator. Parents are also not in the moment that the principal or the doctor
commits the act, to be the joint principal all persons must at the presence the act
was committed by the principal. On the other side, to be joint principal there must
be two or more persons commit the act according to Section 83 in Thai Criminal
Code said that, where an offence is committed by two or more persons, all the
persons who jointly commit the offence shall be regarded as the joint principals and
punished according to the law. In this case, parents did not commit the act together
with the doctor but they just only give intention to the doctor to commit such act.
Moreover, parents cannot give consent to anyone to murder her child even though
that child is not normal or share any organ with the twin because such child is a
person according to the law and morality. Hence, parents are guilty as aider and
shall be punishment for only 2/3 according to the criminal law.
In conclusion, as I have analyzed all of the information whether M is a human
or not, is D guilty of premeditated intention killing, and are the parents guilty of any
offences. For the first question, whether M is a human or not, M is a human under
Section 15 in Thai Commercial Civil Code said that, personality begins with the
completion of birth as a living child and ends with death. Because M has his own
brainstem and other organs the only organ that M have to share with J is the bladder
but it does not matter with the personality of M. for the second question asked that
is D guilty of premeditated intention kill or not, the answer is yes, first of all, the act
of D is qualified in the elements of crime which are external element, internal
element, causation, and justification. D is the principal according to the Criminal law,
who commit the murder act according to the law. According to Section 289 (4) in
Thai Criminal Code state that, whoever murders any person by premeditation shall
be liable to the death penalty. Also, Section 67 and Section 68 in Thai Criminal Code
cannot be apply because in this case the act of the doctor is not necessity under
Section 67 and it is not imminent danger under Section 68 because before the
surgery M and j can live together up to six months to two years. The act of the doctor
is direct consequence because he can foresee the result that M will die after the
surgery under Section 59 in Thai Criminal Code. D shall be full punishment as the
principal according to the law. Lastly, the parents are not joint principal because
they are not at the present where the act was have been committed by the doctor
under Section 83 in Thai Criminal Code and parents are not the principal because
they did not commit the act by themselves. Parents are instigator under Section 84
in Thai Criminal code and guilty of an offence as aider because parents gave the
intention to D to commit the surgery act. According to the law and morality, parents
cannot give consent to anyone to murder their child even their child is not normal.
So, at the end the doctor, which is D, shall be full punishment and parents shall be
2/3 punishment according to the law. Therefore, the law should have the bill that
protect the doctor or the bill that saying that it prohibited to the law to provide the
act in such case because in the reality it is the duty of the doctor if someone ask he to
provide it. On the other hand, the act in such case is against the morality to kill
someone for one to survive. All of my suggestions above are depends on how people
think.