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Jun. 2006, Volume 3, No.6 (Serial No.19)

US-China Law Review, ISSN 1548-6605,USA

The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict
Lixin Yang Renmin University of China Li Zhang Fujian Normal University

Abstract: Conjoined Twins as civil subjects belong to the category of natural persons. The aim of studies on the legal personality of Conjoined Twins is to determine whether their individual is of one or two persons. From the combined perspectives of physiology, psychology, sociology as well as law, any individual of the Conjoined Twins, so long as he possesses a separate brain, reveals an independent will, and assumes a definable social role, should enjoy an independent legal personality. Such individuals can include those with the capacity for civil rights but without capacity for civil conducts, or those with the capacity for civil rights but with limited or deficient capacity for civil conducts, and are thereby all in need of amendment of guardianship systems. The exercise of their birth rights and separation rights may results in legal conflicts in terms of relevant rights and are therefore in need of legal coordination. Key words: Conjoined Twins; legal personality; independent status; birth rights; separation rights Conjoined Twins as civil subjects among all natural people are extremely minority, but they actually independently exist. The civil law theory accumulates little attention regarding theirs legal personality problems, lacks the essential research, and lacks the standard of the legislation. Such a situation is disadvantageous for the protection of their legal personality and their legal right. With the purpose to construct the independent personality of Conjoined Twins and the rules for comprehensive right protection, this article, taking the Conjoined Twins' legal personality as the research object, attempts to analyze the Conjoined Twins' qualifications as civil subjects and explores the Conjoined Twins' legal personality as well as the relevant problems.

1. Objective Feasibility and Urgency of Conjoined Twins' Legal Personality Research 1.1 The objective feasibility of the Conjoined Twins existence
In recent years, the related reports of Conjoined Twins repeatedly appear in the news media. The Conjoined Twins are extremely rare, which is the pregnancy phenomenon that an independent fertilized ovum splits into incomplete two. The birth of Conjoined Twins is a rare congenital malformation. According to the medical estimate, there is one Conjoined Twins out of approximately 40,000 to 100,000 newborns, but among every 200,000 survival newborns there is only one Conjoined Twins. Therefore, the majority conjoined embryo died in

. Lixin Yang, director of the Research Center of Civil and Commercial Jurisprudence of Renmin University of China, professor and PhD supervisor of the Law School of Renmin University of China: main research field: civil law: publications: more than 50 monographs including Tort Law, Personal Right Law, Contract Law, Domestic Relation Law, Inheritance Law, and 350 articles; address: Law School of Renmin University of China, Beijing. P.R China postcode: 100872. Li Zhang, on-the-job PhD candidate, associate professor of the Law School of Fujian Normal University main research field: civil law; publications: one monograph Survey of InternationalPrivate Law and 21 articles; address: Law School of Fujian Normal University, Fuzhou. Fujian Province. P. R. China: postcode: 350007. ' Mofei Liu. Reading the ConjoinedBabies, available from: http://www.edu.cn, September 2, 1992.
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which fails to offer concrete rules to solve the conflicts and disputes between them. in the areas of sociology. Shanghong Jiang. and that no one had the reason to keep one of them alive at the cost of the other's life. On behalf of the abortion side.2 The difficulty of the research on the legal personality of Conjoined Twins Because the bodies of Conjoined Twins are connected. the attorney said. Therefore the law often sinks into the helpless awkwardness." The two attorneys clung to their own argumentations so that the court was unable to reach a verdict as expected. 2003.Somerville Sevoir's The History and Research of Ancient Cultural Relic in Paris extracted such a kind of case: one of the conjoined brothers killed a person with a knife. Otherwise. Because of the fact that the surgery would cause one of them die inevitably and that without surgery both of the two persons would die together. Therefore.3 US-China Law Review 2 2006 . the murderer would escape the punishment. It is said that the English word Siamese Twins was originally used to call them. Another viewpoint was that both the healthy elder sister and the unhealthy younger sister were two equal lives in the world. People sued him and the law sentenced him to death. The Choice of the Conjoined Sisters. the sisters lived for 34 years in Biddenden. Bingchuan Xu. When she was 26 years old. Both of the heads hired an attorney respectively. September 27. who gave birth to 21 children. JiangnanCurrentNewspaper. 4 2 4 Zhenhai Guo. It should not do harm to the innocent embryo. become one or two civil subjects in the residential society. If executed. "When the other decisively used the conjoined body to have sexual intercourse with the embryo's father. were born in Thailand on May 11. it must research into the problems of Conjoined Twins' legal personality. the related problems concerning the civil law will thus arise. it is unable to determine the Conjoined Twins' personality status and the rights enjoyed. One of the earliest documented cases of Conjoined Twins is Mary and Eliza Chulkhurst. "Any female is authorized to love the male she likes and bears children. Belying Youngsters' Newspaper. available from: http://www. an idea war was initiated on existence or death.cmn. The Troubles of the Conjoined Twins. She was raped. HeinOnline -. The law faced the dilemma: carrying out the death penalty to one of the conjoined brothers or both of the two? Once in Nigeria there was a two-headed conjoined woman. since the civil law studies civil subjects. These two heads disagree with each other. but the other wanted to have the baby. 2000.2 Today. But actually it was unable to carry out.3 In 2000. the Saint Mary Hospital in Manchester performed a separation surgery for the conjoined sisters Jodie and Mary from Mediterranean. named Chang and Eng. even if there is only one Conjoined Twins in the residential society. 1. religion and law. October 24. In fact. In the world the most renowned conjoined-twin brothers. in England. right or wrong in the medical arena." But the attorney on behalf of childbirth side disputed. she was pregnant. although the Conjoined Twins are few in number. then. the other would also die and if the innocent brother lived. she (the abortion side) was neither willing nor agreeing. and only some tenacious conjoined babies are born alive and live as Conjoined Twins. It is an inborn tragedy. because his conjoined brother had nothing to do with this murder. The following four cases typically showed this kind of legal awkwardness: As early as 1724. They respectively married the sisters from North Carolina of US.cn. A viewpoint was that acknowledging science and the medical facts could save the life and could be considered to respect life. One head wanted to abort. 1811. the law does not determine accurately their legal personality. They earned their living by attracting the audience in Barnum and the Belli circus troupe and died at the age of sixty-three. the 2nd volume of H. Born in 1100.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict the embryonic period. The Secrets ofthe Conjoined Twins.com. also known as the Biddenden Maids. they are truly living together with other people. ethics.

"The existence of the legal personality prescribes the human qualifications in civil law. Researching on the legal personality of the Conjoined Twins is facing the following critical problems: on the one hand. 7 Junju Ma and Hui Liu. It is said that the parents of these conjoined sisters even wanted to sue the surgeons. (2002). available from: http://www. The degree of the perfection of legal personality reflects the human status in civil law. it refers to the qualifications of the civil subjects. namely civil subjects' status. it refers to the independent legal status of the civil subjects. separation have been raised in the above cases. what is the standpoint of the law regarding this problem? If these basic problems are solved. People's Court Press. namely the civil subjects' inseparable legal protection benefits which manifest the legal personality relations. on the other hand.3 US-China Law Review 3 2006 . inhuman theory.6 These three kinds of implications distinguish with each other and relate with each other as well. freedom.1 The different viewpoints of the determination of the Conjoined Twins' legal personality The research into the Conjoined Twins' legal status and right is first to determine how many personalities the Conjoined Twins have.3 Solutions to the disputes about Conjoined Twins lies in the determination of Conjoined Twins' legal personality The legal personality has three kinds of different connotations: first. it relates the existence of the subject qualifications of the Conjoined Twins. personality. it refers to the object of the legal personality. Especially the case of the separation surgery of the conjoined sisters Lardner and Larry has once again become the focus of what people ponder. whether they are authorized to handle their own life. namely the qualifications of the civil subjects. one-person theory. it relates the degree of perfection of the qualifications for Conjoined Twins. there will be explicit processing rules to decide how the Conjoined Twins exercise the rights and how the individual right conflict between the Conjoined Twins is solved. the Iranian conjoined sisters Lardner and Larry."7 The different conditions of the legal personality reflect the way of human existence in civil law. On the Changes of the Connotation of Legal Personality and Development of the Personality Rights. there are mainly the following four viewpoints: that is. second. little research has been directed to address this question. with some reference to the first meaning. Legal Comments. the civil law must first solve the legal personality problem of Conjoined Twins. to set the rules to solve the disputes of the conjoined persons' rights. in order to pay attention to the conjoined persons' destiny. 2003. what is the basis for the surgeons to carry out the high stake surgery? All the legal problems concerning the Conjoined Twins' life. 2. so as to con-construct the important status of legal personality in the civil law. Therefore.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict In 2003. The development of the connotation of legal personality also expands human rights in civil law. 2002(1). The problems initiated by these cases are: whether the Conjoined Twins have the right to choose the separation. Law Theory of PersonalRights. Drawing on different theories. p. voluntarily chose the separation surgery of which the success ratio is extremely low. October 7.81.com. Tonight We Are All "Conjoined Twins ".cn. 6 3 HeinOnline -. namely the Conjoined Twins are one person or two persons. The Determination of Individual Legal Personality of Conjoined Twins 2. 1. two-people theory and mixed humans Zi Yue. The research of Conjoined Twins' legal personality is based on the second implication above. The failure of the separation surgery caused tens of thousands of people to fall into sadness. such as whether the Conjoined Twins have one or two subject qualifications. In the area of the civil law. third. and thus decide the degree of the attention of the civil law on human. Lixin Yang.sina. who has lived together for 29 years.

The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict theory. Aidong Li. may have been inspired by parasitical twins who often have four legs.70. Surgical Separation of Conjoined Twin: Jodie and Mary. a combination of horse and man. 4 HeinOnline -. law. France surgeons Amonbnois Pare devoted himself to the research of the reason of formation of the Conjoined Twins.' 0 This kind of phenomenon indicated that the Conjoined Twins were regarded as only one person and thus they only had one legal personality. (2003). The opinion that the Conjoined Twins are not human beings could also be seen in Myth of Greece and the ancient Rome.9 The inhuman of the inhuman theory is self-evident. which was of misfortune and God punishment. One was young and the other old. They were often revered as god or played down as monster.edu/academic/philosophy /Sophia/ethics/bioforum/twins. God Janus had two faces.1 Inhuman theory At the end of the 1 6 tihcentury. when can he be considered to have a rational soul? Under what condition can he have only one soul or have two souls.1. Their mother hid them secretly so that they could survive. 2. They are neither god nor monster. Between the late of the 16ti century and the beginning of the 1 7tihcentury.1. available from: http://www. For example. The denial of the Conjoined Twins' legal personality was the reflection of the backwardness of the technical science and the religion at that time. The influence of these early theories on medical science lasted two centuries.2003(3). Centaurs. but the other died before being baptized. Hearing this news.1. translated by Han Qian. For example. no midwife dared to touch them because they were afraid to be cursed. the medical community held the view that the birth of the Conjoined Twins violated the divine intervention and the natural order. 2. the king ordered they be executed. Thus. But for a long time. the conjoined brothers became a common subject in literature. At that time. when one accepted the baptism.3 US-China Law Review 4 2006 . and so on.molloy. medicine and religion problems. The Conjoined Twins are human even if they are the conjoined. He thought that the formation of Conjoined Twins was due to the anger of God or the black magic used by the devil. Nature Exploration. in France people could see such a picture: one of the Conjoined Twins was baptized and saved while the other was often punished into the hell and degenerated. Cangiamila mentioned in his book Sacred Embryo Introduction or on the Duty of the Teacher Doctor and Other People to Save the Baby in the Mother Abdomen that people unceasingly ask such questions as "In order to carry on baptism for the deformed. Therefore. In the 1 6 tih century. the priest often thought that the other one died because he was a heathen. p. It is because that the would-be twins' embryo cell suddenly stops splitting halfway and the fertilized ova split incompletely and continue to grow to become the Conjoined Twins. they were regarded as monsters and were used to please the audience in the circus troupe. The Secrets of the Conjoined Twins. '0 Michelle Foche. people began to pay attention to the Conjoined Twins. E.3 Two-people theory By the 19th century. or due to the fact that God wanted to demonstrate his own power and made what the pregnancy woman had seen became an embryo body. with the further medical exploration of the reason for the formation of the Conjoined Twins. the Conjoined Twins did not have human qualifications. But are the Conjoined Twins really one person or two persons? F. people gradually understood the true reason. when the conjoined brothers Chang and Eng were born.htm. but the persons. In addition. so that people can only carry on the baptism once or twice? 8 Kathleen Minutaglio. Shanghai People Press. The Abnormal Person.2 One-person theory The analysis of the Conjoined Twins between the end of the 16 tih century and the beginning of the 17 th century always regarded the person with a head and two bodies or a body with two heads as the image of a kingdom or the image of two religious communities Christianity. 2.

Thus. she does not have the right of life. then. Without answering this question. just as the sex. The Abnormal Person. Shanghai People Press. it is definitely correct to determine two legal personalities for the conjoined persons. the Conjoined Twins enjoy their life. and if each body has respectively four limbs. too.3 US-China Law Review 5 2006 . The shape of the conjoined persons.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict When the deformed baby with two bodies or with two heads is born. translated by Han Qian. she does not have the legal personality and the subject qualifications. then. it should be baptized twice because there are definitely two persons and two souls. The law only supports the rights of the stronger one. but mixed person. they should be recognized as two people.. But if the Conjoined Twins have the different bodies and four different limbs. 2."I Obviously. it has already interrogated the law time and again: whether the Conjoined Twins actually have one legal personality in the law or each individual respectively has the independent legal personality? Or has the mixed the legal personality? This is precisely a challenging question the civil law faces. According to Two-people theory. should it be baptized once or twice? How many children does he have. nor as two people. if the action of one of the conjoined persons does harm to the other. how to solve the problem of pregnancy and the dispute of the right infringement? The One-person theory supports the head which sticks to give birth to the baby because she can be pregnant and she has the power to give birth to the child. any inconsistent behavior is not allowed. which is the most basic right of a person. if the conjoined persons share one body and the four limbs. according to mixed person theory. When the deformed baby is compressed tighter.4 Mixed person theory Another theory regards the conjoined persons neither as one person. In the case of the above-mentioned Romanian two-headed woman. the law must allow them to be separated by surgery and to own respectively their independent life. according to this kind of judging standard..1. Thus it can be seen that the determination of legal personality of the conjoined person is very important in that it directly relates to the fundamental problem of the rules for the solution of the disputes of conjoined persons ' Michelle Foche. they will be recognized as one person. Just as any man or woman in the world enjoys their respective life. 5 HeinOnline -. one or two?" After he proposed these questions. 2. then up to present time.2 The challenges of the Conjoined Twins' legal personality to the civil law If the discussion about the attribute of Conjoined Twins' legal personality in the around the domains of religion and ethics. the law must allow for saving Jodie's life by sacrificing Mary. p. the 2 1st 19 tihcentury merely centered century. Because Mary is regarded as one parasite to Jodie. under different conditions. No matter this kind of judging standard is correct or not. If one holds Two-people theory. he further argued that the standard for judging Conjoined Twins' legal personality should lie in the body and the four limbs. even if this kind of separation may eventually cause the death of one or two of them. Let's compare the consequences of different theories: In the case of Jodie and Mary sisters mentioned above. it must undertake legal responsibility. people can only have one kind of plural expression: 'I give you the baptism'. if the determination of the conjoined persons' legal personality conforms to some kind of standard. However. can they be separated by surgery? According to One-person theory. the law does not allow them to be separated by surgery because mixed person is an independent person and is one of the shapes of the legal subjects as well. "If the deformed baby has two bodies. But according to the standpoint of mixed person theory. it is unable to solve the problem of the rights of the conjoined person and the rules for its exercise. even if it is conjoined. (2003). is inborn and can't be changed.81.

Human body is one that is essential because. 14That is. 14 The Businessman as an Economic Man in Forensics. Individual in laws (a person in legal definition) does not refer to a material person. psychology and sociology may shed light on the Civil Laws. "Laws cannot discipline a person's behavior or social relates without rights and duties.' 5 We think that. The Theoretical and Legislative Research on Civil Subjects. a natural person is defined as homo biologically while an individual is defined as caput. Law Press. well. economy. Thus.16 That is to say. p. 2.1 Biological basis of legal personality of Conjoined Twins From the perspective of biology. But we cannot regard a person as a human body because body is only the carrier of a person. 13 Feng Huang (translator). the separation between person and legal personality in Roman laws reflects the inequality among persons in ancient Rome. it should own unique humanity gene group or gene frame. person is an individual that a body serves as a whole to combine the unique human body that develops from unique humanity gene group with human brain and maintains the dynamical balance between the inside of the body and the environment. (1998). On the Variation of the Connotation of the Legal Personality and the Development of Personality Rights. has liberated hands. The TheoreticalResearch on Denying the Legal Personalityof Companies.327. In Roman law. 2. cited from: Junju Ma & Hui Wen.29. a person in law should be the one who enjoys legal personality. namely persona. version 39. While certain rights colligated with certain rights under certain social material living standards will express the pursuit of values that society is endeavoring to seek between orders and justice. One who is irreversibly unconscious or suffers from brain death or under the permanent plant condition though they own all humanity gene groups and a human body as well will never be a person for the death of his brain or main part of his brain. p.3. the humanity gene group. In modern times. persona alieni iuris (Latin) and slaves. Shanghai Dictionary Press. The Article 8 of Civil Code of France in 1804 claims that "All Frenchmen enjoy civil rights". among the three elements that constitute a person. one fertilized egg or one embryo that all humanity gene group has will not be a person for the reason that the fertilized egg and the embryo hasn't developed into a human body or a human brain. and owns well-developed cerebrum that is good at thinking and is skilled at making tools and transforming nature spontaneously. Besides being a person. i.' In Roman times.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict and its individual law. p. Chinese Policy and Law Press. (1992). person refers to such a kind of advanced animal that can stand utterly straight. " Tian Yin. Comments in the Study of Law.3 Basic study on the legal personality of Conjoined Twins Legal personality is the qualification and the basic status that natural person enjoys in the category of laws. It is like a slip of cloth that has been cut from the cloth of the order of the social law life rather than a material person that involves subtle differences and characteristics". vol. 16 Cihai. Meanwhile. Law Press. the human body and the human brain constitute a person's biological characteristics. For instance. in view of the determination of one-or-two-people legal personality of Conjoined Twins. (1999).e. human brain is of 12Ciyun Zhu. the concepts and attributes of person from the fields of biology.6. the law value tendency of personality depends on the basic concept of politics. p. human brain cannot live without a human body. A legislator expresses his basic attitude towards a natural person by telling who has personality while who has not. 6 HeinOnline -.2.3 US-China Law Review 6 2006 . Only when a homo owns caput can he be a real person in the category of laws. Thus the legal reflection of this concept lies in the difference among persona sui iuris (Latin). So relatively. use complex language that has syllables.866. he should be free and a citizen as Obviously. (2003). Humanity gene group is one of the biological characteristics of person and it is far from enough. Civil law acknowledges the legal personality of a natural person absolutely. and depends on the cultural space and the justice idea that people in a certain society have obtained. morality and religion of a certain society. The Course Book ofthe Laws ofRome. p. 2002(1). 7.

then they will be two but it is the conjoined one because they have the same carrier and they use the same human body. 20 John Locke. as ordinary and free kind. as for the Conjoined Twins. a philosopher. self-awareness. Secondly. 1998(9). 2. if the Conjoined Twins has one brain." 23 This in fact points out that the nature of human beings is of the same kind and it is the sum total of all the social relations.26. Plato and Aristotle emphasized rationality as the standard of person. An Essay ConcerningHuman Understanding. Marx thinks that "human is the kind of being. First Part. so even before separation they are still two. (1987). Daniel Dennett. brain is the most important criteria to determine a certain individual to be a person. Thus. interaction and verbal communication ability. he enjoys one legal personality. Teng Wengong. but is an individual that "obtains the existence of intelligence and thought. even the copy that owns my psychological continuity. firstly. Study on Philosophy. and alternatively. p. ancient and modern philosophers have listed a series of standards that constitutes person psychological characteristics. Conjoined Twins has a brain. 2. Because will and awareness of each individual are the reflection of the objective world in each brain. 2005. they have their own will. rationality and reflection and regards one's body as oneself.3 US-China Law Review 7 2006 ." 7 Human brain must be an essential and sufficient element.42.2 ' While Joseph Fletchor.24 Therefore. 1998(9). though conjoined. XXVII. and thus. Beijing People's Press. Nagel pointed out that the nature of a person was his brain. On the Concept of Human-A Perspective of Life and Ethics. 2005. 22 Obviously.95. if the individual of Conjoined Twins has a brain independently. p.May 22. and he is a person. New Peking Paper. hobbies and balance between reason and emotion. though most of them share the same body. 1998(9). Meng Zi (Chinese philosopher) regarded sense of compassion as a basic difference between person and non-person. Moreover. all these standards take the person self-awareness as premise. On May 21. New York: Oxford University Press. a moralist. vol. HeinOnline -. they can be induced to self-awareness to some extent. They own their own brains.3.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict the prime importance because human brain is an organ that human body can organize itself to adjust and an organ that supports a person ' rational and self-conscious life. Study on Philosophy. The Success of the Separating Surgery on Indonesia Conjoined Twins. listed ten standards. On the Concept of Human 23 Perspective of Life and Ethics. p. not only because human beings practically and theoretically take the kind of themselves as well as other kinds as objects.3."20 Some modern psychologists and moralists have proposed multi-criteria for definition of person. 21 Renzong Qiu. 8 Yongxing Zhang. human beings treat themselves as existing and living kind. "If my brain had been damaged. On the Concept of Human-A 19 See also: Meng Zi. 1996. standpoint. In conclusion. That will be the psychological base to determine the Conjoined Twins as two legal personalities. the Indonesian conjoined girls who were born with three legs and shared intestines and anus had been successfully separated in Singapore's Gleneagles Hospital. there are two ways to examine a human's social stratification: one is the 1 Derek Parfit. they are hunger for freedom and independence and eager to own their own space. consciousness. but also because it is another saying for the identical things. 24 Renzong Qiu.27 4 .2 Psychological basis of legal personality of Conjoined Twins From the psychological perspective. Th2 Complete Set A Perspective of Life and Ethics. which are curiosity. any of physical unique copy of mine would not have been me.3 Sociological basis of legal personality of Conjoined Twins From the perspective of sociology. Luke conveyed the idea that person is not the existence of flesh. For example. Reasons and Persons. He said. listed six standards for person: rationality. As far as all the Conjoined Twins are concerned. etc. Study on Philosophy. person should be independent and no individual can control other individual's will directly.II. It is because self-awareness is unique in a person that the individual who has self-awareness will be called a person. Oxford University Press. (1975). 22 Renzong Qiu. 7 ofMarx andAngels.

Then. is obviously formalism and inappropriate. they will be considered as one personality. No matter how the body is connected. as far as the Conjoined Twins is concerned. psychological and sociological definition of the characteristics of person. and ability to play a certain role in society. he connects with other people inevitably. Secondly. No matter how the body is connected. lives in the society and can interact with other people. if the Conjoined Twins share all these standards. the individual of the Conjoined Twins enjoys his own legal personality. and in addition. which regards the persons as separate and independent individual. thus it is called water-drop model of humans. regards the persons inseparable part of the social group. The individual of the Conjoined Twins should play his own role in society. the individual of the Conjoined Twins owns independent will. As long as the individual of the Conjoined Twins has his own normal brain. his self-awareness can unceasingly grow and he has a person status. the individual of the Conjoined Twins has his own will. psychological and sociological characteristics of person into consideration. like water-drop. it is thus called atom model of humans. as long as the individual of the Conjoined Twins has his own brain and can think independently. if one person has the human body. they have only one personality. we should take the biological. the individual of the Conjoined Twins cannot enjoy independent legal personality and should enjoy one. On the one hand. Otherwise. the first standard is the foundation of the other two. The interrelationship and interdependence are extremely close. On the other hand. The Nigerian pregnant two-headed Conjoined Twins though share the same 8 HeinOnline -. Firstly. In other words.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict individual argument. on the one hand. he cannot enjoy his own legal personality. This kind of personal social relation is the necessary social foundation of human beings. the human brain and the self-awareness ability. each person inevitably connects with others. 2. Therefore. The other is the whole argument. otherwise. the individual of the Conjoined Twins owns brains independently. On the contrary. but shares the same brain or the same will and plays only a role in society. So.3 US-China Law Review 8 2006 . the individual of the Conjoined Twins enjoys his own legal personality. Thirdly. like atom. the basic elements of determining legal personality of Conjoined Twins are perfect brain. if each individual respectively acts as different social role and respectively contacts with the society. In fact. The method that centers on determining independent status of Conjoined Twins by material manifestation-determine one's personality by his independent body and arms and legs. that is. the individual of the Conjoined Twins enjoys his own legal personality.4 The fundamental determination of the legal personality of Conjoined Twins On determining the legal personality of Conjoined Twins. If the individual of the Conjoined Twins doesn't have his own will. they should enjoy their own legal personality so long as they have their own normal brains and their own wills and plays their independent roles in society. if the individual of the Conjoined Twins owns independent body. then it is not difficult for him to obtain his own will and realize his role in society. as long as the individual of the Conjoined Twins has his own will to judge the affairs by his own. each person is unique and cannot be duplicated. though the bodies of the individual of the Conjoined Twins are connected and their independent behavior is restricted. the individual of the Conjoined Twins should enjoy legal personality. independent will. Therefore. It cannot be expropriated because it is an inevitable result of the biological. they must be regarded as independent personality. the individual of the Conjoined Twins plays a certain role in the society. On the other hand. As long as the individual of the Conjoined Twins communicates with others as an independent social role under the control of his own will and owns the essential social base of person.

Therefore.2 Because heartbeating and breathing of the individuals of Conjoined Twins may not stop at the same time. 3. On the other hand. after one individual of Conjoined Twins died. As to the death of the individual of Conjoined Twins. what's more. However. the commonly-used judging standard that simultaneously stop heartbeating and breathing should be applied. once Conjoined Twins totally separate themselves from the matrix.1 The individuals of Conjoined Twins who possess independent legal personality own respectively equal and independent capacity for civil rights Capacity for civil rights is a symbol that natural person has legal personality. What should be studied is whether the respective individual of Conjoined Twins is joint birth or separate birth on earth. 3. The Theory of Total Delivery is still applicable to the birth of Conjoined Twins. both his/her capacity for civil rights and capacity for civil conduct belong to individual Conjoined Twins. As a result. for Conjoined Twins who enjoy two legal personalities. the other individual may continue to survive. the time during which the embryo is totally divorced from matrix is recognized as the birth time. they possess the important element of birth and obtain capacity for civil rights. Consequently. because their respective individual owns respectively independent capacity for civil rights and capacity for civil conduct. then. which cannot be abandoned or transferred and cannot be limited or deprived. Conjoined Twins are regarded as a combined individual who have two legal personalities with each individual enjoying respectively independent and equal capacity for civil rights.3 US-China Law Review 9 2006 . If the medicine and laws adopt the standard of brain death. respective individuals of Conjoined Twins should be determined as that they are born at the same time and obtain capacity for civil rights in the meantime. a respective guardian is needed to amend respective capacity for civil conduct. either. then. the death of an individual of Conjoined 25 Hereby. what's more. The purpose of determining the birth of Conjoined Twins also lies in the determination of the obtainment of his qualifications of civil subject. because the individuals of Conjoined Twins are joined. own two brains and independent will and even acts different sexual role. Individual Capacity for Civil Rights and Capacity for Civil Conduct of Conjoined Twins For Conjoined Twins who only enjoy one legal personality.. That is to say. In our opinion. All civil laws of various countries stipulate that the capacity for civil rights of natural person begins from birth and ends with death.e. they becomes living objects when divorcing. be divorced from matrix and become living object). although each individual may have the difference of being early or late when divorced from matrix. the authors do not discuss problem concerning brain death. It is the embodiment of the concept of freedom and equality of human society in terms of civil laws.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict body. definitely. this does not impede the individual confirmation concerning the fact that the earlier born is elder brother or elder sister. they should be two persons and enjoy two legal personalities. 9 HeinOnline -. said standard is of course applicable to the death of Conjoined Twins. there is only one who can be taken as the final time and who is completely divorced from matrix. the later born is younger brother or younger sister. The essential about the birth of natural person stipulated by civil laws of various countries in modern times mostly regards the fact that newborn baby has independent viability in terms of physiology as important element (i. Natural person has capacity for civil rights for the whole life. It is only necessary to set up guardian so as to amend his/her capacity for civil conduct. This kind of capacity of civil rights commences from the birth of Conjoined Twins and ends with the death of Conjoined Twins.

and that there are differences towards the effectiveness of their behaviors. there is no problem that Conjoined Twins should be under the custody of legal guardians. However. that persons with limited capacity of civil conduct have limited capacity of conduct. regarding being of age and being in one's right mind as basic conditions for having complete capacity for civil conduct. they are not considered to be those who absolutely have no capacity for civil conduct. limited capacity of civil conduct and having no capacity for civil conduct. Accordingly. The purpose of establishing capacity for civil conduct in law is to ensure that the subject is able to pursue and realize own benefits according to own will. which divides capacity for civil conduct of natural person into having capacityfor civil conduct and having no capacityfor civil conduct. They should not be regarded as simultaneous death. Its features are that persons having no capacity for civil conduct absolutely have no capacity for civil conduct. the death of one individual can only lead to the disappearance of his capacity for civil rights and does not influence the other individual to continuously enjoy the capacity for civil rights. However. they have no way to express their 10 HeinOnline -. persons who lack the capacity for civil conduct are to be put up among persons having complete capacity for civil conduct so as to divide the capacity for civil conduct of Conjoined Twins into three different states. the actual practices vary in detail. The reasons are presented as follows. Its features are to differentiate completeness from incompleteness in terms of capacity of intention. 3. each individual has no way to control his civil conduct completely according to own meanings in that the individual is closely connected with the counterpart in body.2. In terms of this standard.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict Twins should take the simultaneous stop in terms of respective heartbeating and breathing as standard. The other kind is trichotomy. However. There are mainly two kinds. we hold the view that the state of capacity for civil conduct of the individuals of Conjoined Twins should be distinguished. it seems inappropriate to bring the Conjoined Twins who are adult and have none of deficiency in both intelligence and mind into the scope of complete capacity of civil conduct. Also. they are called persons having no capacityfor civil conduct. such as Germany.1 Persons who have no capacity for civil conduct As for Conjoined Twins who are not above ten years old. the implementation of civil rights must depend on individual capacity for civil conduct. Switzerland and China. The individual of Conjoined Twins owns independent legal personality respectively. 3. such as France and Japan. Because they do not possess capacity of intention.2 The state of capacity for civil conduct of Conjoined Twins The law has endowed natural person with capacity for civil rights. Although the individuals of Conjoined Twins are adults and have complete capacity of intention. Thus. As to the state of capacity for civil conduct of natural person. However. As to capacity of intention of the incomplete. The role only lies in determining his legal status in order to make his legal personality materialized in detail. their individuals are referred to as persons having no capacity for civil conduct. the capacity for civil rights of every individual of Conjoined Twins disappears respectively because of respective death. the minor Conjoined Twins and individuals are incorporated into the scope of persons having no capacity for civil conduct and persons with limited capacity for civil conduct. The living individual still has capacity for civil rights and can exert civil rights according to his own will and implement civil responsibilities as well. Of course. One kind is dichotomy. In terms of the trichotomy way of differentiating the state of capacity for civil conduct in China. The capacity of conduct deficiency of persons having no capacity of conduct and persons having limited capacity of conduct can be amended by guardianship system. which divides capacity for civil conduct into three kinds including complete capacity of civil conduct. various countries take age and mental state as measurement standard.3 US-China Law Review 10 2006 .

such as waste. However. to categorize the adult individuals of Conjoined Twins as persons who lack capacity for civil conduct is to take into consideration the reality that Conjoined Twins have become adults and to solve the problem that the capacity of conduct of the individuals of adult Conjoined Twins needs to be amended. to carry out civil rights and fulfill civil responsibilities. it is a very good choice to classify them into persons who lack capacity for civil conduct. guardians still need to be established.3 US-China Law Review 11 2006 . because of their physical limitations. Accordingly. 3. guardianship system based on the deficiency of capacity of conduct of modern adults should be used to amend it. This state really boils down to killing three birds with one stone. Because the young individuals of Conjoined Twins have already been standardized by systems of persons who have no capacity for civil conduct and persons with limited capacity for civil conduct. the old men.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict wills correctly.2. In addition. Firstly. stipulating Conjoined Twins who are under ten years old and under eighteen years old as persons having no capacity for civil conduct and persons with limited capacity for civil conduct goes with the realistic system of the state of capacity for civil conduct in China. On the other hand. it's unnecessary to set up new system. Secondly. as combo of two persons. Their legal agent or guardian acts as an agent for their civil conduct. They can express their wills to a certain extent and can engage in civil acts in accordance with their own capacity of conduct. the individuals of Conjoined Twins who are adults are destined to have no way to independently implement civil rights respectively because of physical barriers. It is relatively suitable to design the state of capacity for civil conduct of individuals of Conjoined Twins in this way. As a result. they should belong to persons who lack capacity for civil conduct. drinking too much and freak-out etc. they have no way to independently perform legal transactions. Having no capacity for civil conduct and having limited capacity for civil conduct take age and mental state as a judging standard.2. Conjoined Twins and individuals who have serious deficiency in terms of intelligence and mind should also be regarded as persons having no capacity for civil conduct.3 Persons who lack capacity for civil conduct Adult Conjoined Twins and their individuals have complete capacity of intention and can express their wills. such as the deaf. or the physical states. the dumb. or other states.. 3. as persons having no capacity for civil conduct. the deficiency of capacity for civil conduct regards the disability to independently carry out civil rights as a judging standard. Their statutory agent or guardian will act as agent and carry out part of civil juristic acts. they are under the custody of their legal agent or guardian. the disabled. Therefore. It is evident that persons who lack capacity for civil conduct are different from persons with no capacity for civil conduct or with limited capacity for civil conduct. On the other hand. the requirements of amending capacity for civil conduct of the individuals of Conjoined Twins can be adapted immediately. They have part of capacity of intention. Conjoined Twins and their individuals with partial deficiency in terms of intelligence and mind and with partial capacity of intention should be regarded as persons with limited capacity for civil conduct. Without much modification. Because of the mental states.2 Persons with limited capacity for civil conduct As for Conjoined Twins who are above ten years old and less than eighteen. What's more. their individuals are referred to as persons with limited capacity for civil conduct. the disability to independently carry out civil rights may be declared to be incompetent person or would-be incompetent person etc. The reasons are presented as follows. However. this is the trend in the world that civil laws establish adult guardianship system. Thus. they just belong to persons who have both complete capacity for civil conduct and deficiency. 3.3 The adult guardianship system of persons who lack capacity for civil conduct is in conformity with the requirements of amending capacity for civil conduct of adult Conjoined Twins 11 HeinOnline -.

1.1998 made clear the stipulation that adults under guardianship was not classified as persons with no capacity of conduct and that more consideration is taken into the party concerned. The traditional guardianship system of civil laws is established in order to protect persons with no capacity for civil conduct and persons with limited capacity for civil conduct. and overemphasizes guardianship functions and post rights of guardians. The objects under its protection include minors and mental patients and so on. (1997). it also takes physical disorder into consideration. the said adult cannot handle affairs. The objects under the custody of guardianship system of modern civil laws are enlarged to include persons with various kinds of disorders. The guardianship system of persons who lack capacity for civil conduct is different from traditional guardianship system of civil laws. 2003(5). traditional guardianship system continues to be used. 28 Traditional guardianship system is mainly legal guardianship in the way of heteronomy.26 Amendment towards laws of taking care and other stipulatedlaws on June 25. For instance. and newly established will-determined guardianshipsystem and custody registeringsystem. based on legal regulations. However. are limited and the family court appoints guardian in terms of post rights and endows guardian with legal power in order to amend capacity of conduct of persons under the guardianship. neglects the wills of person under guardianship. In addition to the disorders resulting from age or mental state stipulated as the above. The establishment of will-determined guardianship system is another legislation breakthrough of new guardianship system in Japan. Investigation Towards Japanese Laws Concerning Adult Guardianship System. guardian can be appointed only through the application of the said adult. 12 HeinOnline -. p.3 US-China Law Review 12 2006 . If because of physical disorder.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict The individuals of adult Conjoined Twins belong to persons who lack capacity for civil conduct and should turn to modern adult guardianship system for help in order to amend their capacity for civil conduct. It abolished the declaration system of interdiction and would-be interdiction among general rules of collection of civil laws.1. 1992 made fundamental amendment towards guardianship stipulations of Civil Code of Germany and abolished interdiction declaration system and combined the custody of both persons with mental disorder and persons with physical disorder in old laws into one.489. Legal Publishing House. Will-determined guardianship system refers to the fact that when self has complete judging ability.1. p. his legal behaviors can still be valid. will-determined guardian is endowed with the contract of mandate of total or partial agent rights relevant to self-guardianship affairs after self has lost judgment ability. (2004). As to the latter. only when he is not at a state of unconscious mental disorder. "Words of Translator" in "Civil Code of Germany ". custody court will appoint a guardian via application or in terms of post rights. New system is composed of two parts including legal custody and will-determined custody. Paragraph I of Article 1896 in Civil Code of Germany(the amended edition) stipulates that if the adults cannot handle affairs completely or in part because of mental illness or physical. Legal custody refers to the system that the capacity of conduct of those who are in the state of insufficient judgment ability.4. 2000. 28 Xia Li. mental or mind disorder. The task of guardian is limited to a necessary scope. Within the guardianship. 27 Chong Zheng & Hongmei Jia. the fact that the said adult has no way to express his will is an exception. treats the demand of person under guardianship by simplification. particularly the wills of adults whose capacity of conduct was not limited by mental or intelligence factors. The guardianship style is take-over style in the way of 26 Weizhuo Chen. Civil Code of Germany. 1999 and has implemented since Apr. Legal Publishing House. adult guardianship system is created. The Congress of Japan passed a series of laws relevant to adult guardianship system on Dec. updated adult guardianship system in relatives collection. As to the former. the Amendment Bill ConcerningAdult Guardianshipand Protection issued in Germany on Jan. Laws Forum. The guardian is an agent of the person under the guardianship in and outside of the court within said scope.

. can make decision by self. Conjoined Xia Li. Self-decision rights (Rights of self decision) refer to the rights to guarantee that persons who lack capacity of conduct are not interfered by public power as to certain individual items. live together with ordinary people and take part in transaction activities. including Conjoined Twins with single legal personality and Conjoined Twins with respective legal personality. and to make them become normal members of the society and normalize their life. Human Rights Declaration of the World (1948) and Stipulations of an Agreement ConcerningInternationalHuman Rights (1996). Conjoined Twins should belong to the objects protected by the above-mentioned Declaration of United Nations and stipulations of an agreement.4 The conceptualization and design of the guardianship system of Conjoined Twins 3. from the international perspective. Thesis Collection of InternationalSeminar on Code and Anti-code of Civil Laws. Also. 2005. It aims to maintain human esteem and respects self-determination will of persons under the guardianship. On the other hand. a series of human rights pacts have already been passed to declare and guarantee human rights of persons who lack civil capacity. The whole society should create environment and conditions to allow them to take part in the society with all dimensions. and that they should be merged into the common society. 29 The custody towards individuals of Conjoined Twins must embody the ideas of custodians and realize self-rule nature of custody towards them so as to better safeguard their rights. Such as Rights Declaration of Persons with Mental Disorder (1971). The adult guardianship system which embodies the spirit of the above declaration and stipulations of agreements can be fully applicable to amendment towards capacity for civil conduct of individuals of Conjoined Twins. Their main ideas are to advocate respecting self-decision rights. Because of physical disorder or mental disorder. guardians are custody personnel who restrict their behaviors in order to avoid the fact that persons under guardianship cannot assume responsibility. It takes into account mainly the autonomic way of will custody. It is guaranteed that when individual items are decided on. to help them take part in social life equally and normally without suffering from any prejudice. and also including Conjoined Twins with no capacity for civil conduct. they have independent wills.1 All Conjoined Twins should be allocated with guardians All Conjoined Twins. the wills of the person under guardianship are not within the scope considered by laws. the passive protection is shifted to active caring. modern adult guardianship system pursues the basic ideas of respecting self-decision rights. Also. It believes that self-decision rights are indispensable rights in terms of self-discipline of personality. To protect persons with disorder refers to the fact that the passive and heteronomy protection of old guardianship system is changed to the active and self-rule protection. Although individuals of Conjoined Twins lack certain capacity of conduct.e. These ideas and rules meet the urgent demands of the individuals of Conjoined Twins who have independent legal personality and are lack of capacity of conduct. Self life normalizationrefers to the fact that persons with physical disorder and mental disorder should not be isolated from the society. 3. i. they are not interfered by public power. to make them live a normal life as normal people and participate in activities of normal people. Conference Corpus of East China University of Politics and Law. To respect their self-decision rights is manifested by the respect for their behaviors and their personality dignity.4. In principle. Its ideas are advanced and systems are optimized.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict heteronomy. 29 13 HeinOnline -. and that the decision is made without illegal interference of other people. In fact. the meaning of guardian comes first. Adult Guardianship System of Civil Code.3 US-China Law Review 13 2006 . Rights Declarationof Persons with Disorder (1975). an individual of Conjoined Twins is also a member of the society. Its theoretical basis mainly lies in the self-discipline of personality and the pursuit of happiness. maintainingself life normalization and protectingpersons with disorders.

the neighborhood committee and the villagers' committee have rights to designate guardians among the close relatives of the person under guardianship. then. no matter Conjoined Twins with single legal personality. both individuals can either choose to share a guardian via agreement or choose their respective guardians independently or designate guardians. Their capacity for civil conduct should be truly amended so as to protect their rights. This kind of guardianship fully respects the present judging ability of Conjoined Twins individuals and is beneficial to guarantee them to take part in normal social life to the greatest extent so as not to make them isolated from the outside society due to the guardianship.4. the decisions made concerning appointing or not appointing guardians should be respected. guardianship can be established only towards items which need guardianship while the remaining affairs are kept at the disposal of individuals of Conjoined Twins.2 Two kinds of different guardianship systems will be set up according to different physical and mental disorder of Conjoined Twins As to Conjoined Twins who are minors and suffer from mental disorder. their legal guardians will act as guardians. we should bring the role of guardianship into full play. there is no necessity to establish guardianship. the court has power to make a verdict. The organizations which own the right of custody to Conjoined Twins are the unit where the person under guardianship works. If there is somebody who does not obey the above designation. if they are young. If through consultation. 3. As to individuals of Conjoined Twins with respective legal personality.4. which makes their statutory agents play the role of guardians. As to the guardianship towards Conjoined Twins. Under the conditions that their respective benefits are not violated. When there are disputes on the items concerning the guardians of Conjoined Twins.4. particularly the guardianship towards adult Conjoined 14 HeinOnline -. the relevant units. 3. As to items not included. if they are adult. the villagers' committee. The court has the power to make verdicts on the dismissal and replacement of guardians. they should be under the custody of legal guardianship system.3 The choice of guardians for adult Conjoined Twins As to Conjoined Twins with single legal personality. single legal agent custody should be allocated. or individuals of Conjoined Twins with independent personality. If individuals of Conjoined Twins have the ability to independently deal with several affairs therein.4 The guardianship scope of adult Conjoined Twins The individuals of Conjoined Twins can decide the content or scope of custody with guardians. the neighborhood committee. and the people's court at the residential area of the person under guardianship.4. they should consult with Conjoined Twins and should take subjective will and benefits of Conjoined Twins into full consideration. When Conjoined Twins do not choose guardians.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict Twins with limited capacity for civil conduct and adult Conjoined Twins. 3. it is agreed that individuals of Conjoined Twins have ability to handle their own affairs. which chooses designated agent or will-determined agents as custodians.3 US-China Law Review 14 2006 .5 The organization of guardianship for Conjoined Twins Because the guardianship towards Conjoined Twins has its particularity. they can be set up only under the precondition that the establishment of guardianship is really necessary. they should be under the custody of their legal agents. However. Conjoined Twins with physical disorder and Conjoined Twins with both physical disorder and mental disorder should be under the custody of adult guardianship system. or designated custody and will-determined custody should be chosen. 3. when the legal guardians implement custody affairs (fulfill his guardianship). should be under the custody of guardianship system.

or the civil administration department at the residential area of Conjoined Twins act as guardians. As a combination of two individuals with independent will and legal personality. these factors exist when Conjoined Twins are enforcing their rights.2 The major manifestation of rights conflict concerning the legal personality of the individuals of the Conjoined Twins The most important thing in the study of rights conflict concerning the legal personality of Conjoined Twins 30 The Complete Set ofMarx and Angels. dependence. 1995. If the units of Conjoined Twins' parents. An Analysis of Legal Positivism. different people may pursue the same interests. as well. Therefore rights conflict is actually the conflict between the pursuit of benefits and value. If the guardian is found to be incompetent or violate the duty of guardianship. and when they have no relatives who can fulfill the duty of their maintenance. vol. human being is an existence composed of individuals who have different opinions that lead to conflicts in pursuit of value. the neighborhood committee. Secondly. the possibility of the conflict exists between the individuals. On the other hand. 3 ' Undoubtedly.1 The cause of rights conflict of the legal personality of Conjoined Twins Since the legal personality of Conjoined Twins is recognized by law. On the other hand. the neighborhood committee. Since the legal personality of the individual of Conjoined Twins is recognized by law. exclusiveness and the vagueness of the dividing lines between different rights. it is impossible for each individual to exercise his rights for the bodies of the Conjoined Twins are closely connected to each other. the twins and society. whose existence in society is based on the pursuit and satisfaction of his interests."30 However. based on the different social attributes and conflicts. which consequently lead to rights conflict. the duty of custody of the unit where the person is under guardianship. human being is a social animal in terms of the subject of rights. On one hand. Legal System and Social Development. 2004(2). "Everything people are struggling for is connected with their interests.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict Twins. The Conflict of Rights. rights conflict exists between individuals in terms of Conjoined Twins themselves. rights conflict exists due to its self-satisfaction. 4. Therefore. they themselves are guardianship implementation organizations. it's inevitable that differences in pursuit of benefits and value exist between different individuals. 4.1. hence independent choice of benefits. individuals and society. The reasons are as follows: Firstly.3 US-China Law Review 15 2006 . Thirdly and the most importantly. When Conjoined Twins as the persons under guardianship have no property or the property is insufficient. rights conflict concerning the legal personality will inevitably arise. the guardianship guarantee organization should be responsible for the living expenses of the persons under guardianship and for the payment of guardians. Conjoined Twins will encounter more complex collision in rights. and different individuals of Conjoined Twins. each individual is an independent subject of civil affairs with independent legal personality. the twins and others. which exists between the two individuals. Beijing People's Press. Rights Conflict and Coordination Rule of the Legal Personality of Conjoined Twins 4. thus conflict arises due to the limited resources of interests. and the villagers' committee should be broadened and the function of supervising the guardians should be added. the above organizations have rights to correct or to appeal to the court cancel the qualifications of guardians. the villagers' committee. as far as right itself is concerned. " Kejin Wang. p. 82 . 15 HeinOnline -.

com. But who will respect their right of choice? A verdict was made by the Supreme Court of France on Nov.sina. they can't fully control their body after birth. The manifestations of rights conflict are as follows: 4. and they have the right to choose not to be born.3 US-China Law Review 16 2006 . Any doctor who conceals what he knows about the foetus or aid the pregnant woman in giving birth to the handicapped baby will assume the responsibility both in law and financial compensation.com. The doctor warned her that only one individual can survive even if they undergo a separation surgery after birth because the two individuals share the same heart. that is to say. but she refused after a painful consultation with her boyfriend Gary. believing that it will not only reduce the burden on parents and society. but proves a reasonable choice in terms of eugenics. should it occur to them that they have to die and lose their personality? It was reported in World News on September 26. a speaker for an organization struggling for the birth right of the handicapped children remarked. as for the Conjoined Twins.cn. September 27. 32 3 16 HeinOnline -. The doctor in charge of the medical check-up of foetus has the obligation to ask the pregnant woman to abort the handicapped foetus.available from: http: //www. 28. "I feel sorrowful for families who care for the children with down syndrome with their love. However. once the foetus is decided to be Conjoined Twins. so I don't want to make the decision on their life. This doesn't mean killing the innocent life.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict is to study those concerning the legal personality and the status of each individual. who will exercise it. Archbishop Andre Winter Troys. "I want them to grow naturally and I don't want to play the role of God. 2004. They're not dolls that can be returned to the shop.1 Conflict about the birth right of Conjoined Twins It is not difficult to judge whether a foetus is conjoined with the help of modern medical technology. "Some judges cling to the old idea that to kill the young life is better than to let it become a disabled. do they have the right of birth? If they have the right of birth. as well. 2001. December 20. They are reluctant to be the Conjoined Twins. It is worth pointing out that this rights conflict doesn't occur between the individuals of Conjoined Twins but between the An English Mother Pregnantwith Conjoined Twins. but also optimize the population structure and improve the quality of population and release the pain brought by the birth of the person concerned." A Roman Catholic in France also declared that this verdict is an insult to all the families with handicapped children. I want to leave their fates to their own decisions. She said to the reporter. They are lives in my body. However. they have their own will but they can't act according to it." The verdict almost declares that such love has no value at all. 32 However.jschina.2. chairman of the family committee in French Diocese said. This judgment immediately caused a heated discussion in France as to whether the handicapped foetus has the right of birth. It was positively pointed out by the judgment that abortion surgery should be performed if a pregnant woman knows that the foetus she conceives is disabled mentally or physically for fear that the baby would suffer all his life and become a financial burden for the family and the society. What's more. Doctor Myrabell. Ao Birth Rights for Stupid Children. a good few people are in favor of the verdict.cn. 2001 that the foetus with down syndrome enjoyed the judicial right not to be born. Both the handicapped society and the national morality committee criticize such a verdict as inhuman. available from: http://news. The girl was advised to undergo an induced abortion. they live a miserable life because they are disabled. and how to exercise it? If they don't have the birth right. 2004 that a 19-year-old girl in the County of Buckingham named Clarissa Springs conceived Conjoined Twins. 33 We take the position that it is the first rights conflict that Conjoined Twins face before their birth to decide whether they have the birth rights in order to make the first choice concerning their own personality.

4. 2000. September 27. October 7.2 Birth rights conflict between the individuals of Conjoined Twins At times birth rights conflict occurs between the individuals of Conjoined Twins.cn.sina. they will never be forgiven by the people and the human rights group who are against the surgery.3 Separation rights conflict of the individual of Conjoined Twins The individuals of the Conjoined Twins have to live with each other. separation surgery is risky. the Conjoined Twins sisters in Iran gave their lives for freedom on July 8. (i) Whether law has the right to interfere with the separation decision made by the individual Lardner and Larry.2. the masses of the people form two contrasting positions as to the choice of the birth right of the sisters.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict individual and other individuals and social rights. Mary is a parasite on Jodie. the other will survive. just as what Maas views the 34 Bingchuan Xu.3 US-China Law Review 17 2006 . How to make decisions as to the birth rights conflict of the individuals? Who is going to make such decisions? This is undoubtedly a severe choice. Their bodies are joined by stomach with two heads in opposite direction. Though the skills in separation surgery have been ripe. most Conjoined Twins will both survive because each of them has his own organs. each individual enjoys separation right. Tonight We Are All "Conjoined Twins". the elder sister has a healthy and sound heart. has to live on her sister's organs.K came to the conclusion that the twins could only survive for three to six months without a separation surgery after a thorough medical check-up of the twins. 2003. 17 HeinOnline -. 34 It needs to be responded that what position law should take and what choice law should make as to the conflict and choice of birth rights. Experts from Saint Mary Hospital and other medical authorities from other hospitals in U. but Mary. If one individual chooses to give up his life. " Zi Yue. Just as the sisters declared. While those who are against the surgery hold that no one has the right to save a life by killing the other. sharing the same legs and feet. "We came conjoined.2. Many doctors can't accept the harsh fact emotionally. Even if the twins create a miracle. 4. Naturally.com. However. it's the best choice and result to separate the individuals from each other if possible. the realization of personality means more than maintaining the individual's life as an independent individual. the younger one. Those who support the separation surgery argue that it is science and medicine that can really save lives. Such conflict occurs in the case of Conjoined Twins called Jodie and Mary. they could only survive a few years. People throughout the world mourned over the death of the brave and strong-willed twin sisters at that night. However. It is difficult to each individual. both are doomed to die. the basic value of the independent existence of the legal personality is to realize and maintain the independent personality of the subject. It has more abundant and more important connotation: on one hand. Beijing Youngsters'Newspaper. only one can survive. If doctors dare to force a separation surgery. which means the hospital and the doctor performing the operation will have to play the role of murderer of one of the individuals. 2003. available from: http://www. If neither chooses to give up his life. The Choice ofthe Conjoined Sisters. If they undergo a separation surgery immediately. Jodie. Under such circumstances. just as risks exist in any medical operation. as well. When it comes to the Conjoined Twins sisters. for both the healthy elder sister and the unhealthy younger sister are equally important lives in the world. According to medical experts. When the destiny of the twin sisters was illuminated in newspapers. we'd like to return with a new feeling. the elder sister will grow up healthily. who doesn't have these organs except for a hypoplasia brain. liver and lung."3 5 Indeed. but it remains an important question as to how to exercise the right.

(ii) Who is going to decide on the separation surgery of Conjoined Twins under age? As to babies who have just been born.2. without permission. he/she can exploit it through his/her agent. But their parents who think they both should be treated equally opposed the idea of saving one individual's life at the cost of the other's life. But conflict occurs when they are exercising their rights due to the conjoined body. one individual of the conjoined twin 36 Limin Wang." "We don't want to leave one of them in the hospital. when exercising her right. (1994).5 Rights conflict in undertaking the legal consequence for illegal act As an independent legal personality.Jilin People's Publishing House. one individual may violate the other's will. to realize one's personality is to cultivate and realize the awareness of independent personality. the younger sister will give up her life. each individual has his own right and the right to exercise it. he will be charged with murder and declared guilty. which caused the twins to die. New Comment on the Law of the Right of Personality. The decision as to whether to be separated or not intrigued a collision between medical science. each individual has the right to associate and fall in love with the opposite sex. a doctor can't perform operation on patients." Therefore Manchester Health Center decides that it is legal to perform separation surgery on Conjoined Twins. meanwhile they suspect their choice. he will be charged with dereliction of his duty. However. otherwise both will die. they had the right to choose to be separated from each other. As to the harsh result. people feel proud of their choice. religion. Though the conflict manifested in this case is the right to bear child. As a woman with independent legal personality. each individual has the right provided by law to exploit various civil acts. who is going to determine whether they should be separated especially when separation means giving up one or both. thus adds to the vitality of the subject. 18 HeinOnline -. 4. we want to bring both of them home. 4.4 Rights conflict between individuals of Conjoined Twins when exercising their own rights As an independent legal personality. On the other hand. Somerville. For child without civil capacity." "If a doctor who has the obligation to save the twins doesn't put it into action. and thus conflict arises. It was a regret that they chose to be separated at the cost of their lives. his parents will make the decision. Only if they both agreed.2. In the case of Jodie and Mary. Saint Maria Hospital and the doctors have to hand the strange case to the Supreme Court. "We can't accept the heartbreaking fact that one survives. or he will be attacked or even made liable to civil prosecution or criminal prosecution. To realize one's personality is to respect the dignity and value of each individual and realize the essential freedom of each individual. instead. ethics and law. 36Both Lardner and Larry have the right to pursue freedom and to cherish the hope that "came conjoined and return with a new feeling" because they are adults with normal intelligence. But as they share the same body. The dispute in pregnancy and parturition caused by a double-headed Conjoined Twins in Nigeria is definitely a typical reflection of such a conflict. Similar conflict arises when individuals of Conjoined Twins are exercising other rights and perform other civil conducts.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict manifestation of human's high demand on law. which is against God's order. while the other dies." Therefore. it is a miniature of rights conflict between different individuals of Conjoined Twins. Even if the individual himself/herself is somewhat incapacity. They said. It needs to be answered by the law whether law has the right to intervene if great risk does exist in a choice to be separated.3 US-China Law Review 18 2006 . Doctors believe that Jodie would be saved if separated or she would eventually die. Who should be responsible for the consequence when one individual violates the law and cause damages while the other doesn't perform the act? Just as the case extracted by H. "If a doctor decides not to perform surgery on Conjoined Twins. and even to have sex with the opposite sex and conceive a child and give birth to the child. if they are separated.

On one hand. judicial judge is responsible for the observation of right or legal interest on the ground of their importance in different situations. Chinese Commercial Press.3 US-China Law Review 19 2006 . subjectivity should be avoided and objectivity ought to be pursued in these observation and choice so that maximum interest choice can be achieved. (2003). Legal Methodology. Legal Methodology. the other will not survive. or both of them make some concession to some degree. p. people's lives or personal integrity enjoys higher status for freedom of speech right and freedom of communication right have structuralsignificance in democratic society. as well? How should law coordinate such conflict? 4. it depends on the degree the legal interest deserving protection is influenced (for example. Secondly. as regards the right conflict of same status or the right involved is so peculiar that it is impossible to make an abstract comparison.3 The principles for coordinating the conflict between each individual of the Conjoined Twins and their legal personality All the above-mentioned issues are related with the conflict resulting from the right of independent legal personality of each individual of the Conjoined Twins.1 The principle of maximum interest The right conflict is actually an interest conflict. necessary degrees for such purpose should not be surpassed. it should be determined whether one legal interest is obviously superior to the other in value. a German scholar.279. translated by Aie Chen. it is necessary to make new law. on the other hand. Larenzi.3. 19 39 Such an HeinOnline -. to resolve right conflict. p. the public know how the revealment of these matters affects a nation's interests). it depends on the damaging degree if some interests are abandoned. Chinese Commercial Press. The avoidance and elimination of right conflict is the permanent pursuit and puzzlement of legal experts. and the pursuit of the protection of the biggest interest of value. When abstract right conflict changes into concrete one. The principles for coordinating the conflict between the right of each individual of the Conjoined Twins and their legal personality are conceived as follows: 4. Maximum interest reflects policy-maker's biggest interest and value pursuit.286. Chinese Commercial Press. slightest damaging methods or minimum restriction principle. then the interest choice in the right conflict of each individual of the Conjoined Twins will be based on our basic beliefs. (2003). 39 Larenzi. or one right gives way to another right (or relevant interest). the other would suffer an injustice. The German scholar also thinks "The following principles should be taken into account when legal interest is evaluated: Firstly."3 "The observation of legal interest in individual cases is one way of continuing law and it helps to interpret some conflict problems not covered by law . translated by Aie Chen. p.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict brothers killed a person. the requirement of appropriate rate principle. It is just because of the existence of interest conflict that right conflict arises. When compared with other legal interest (especially the interest of property). should the other individual be punished. Thirdly. translated by Aie Chen. Larenzi. Thus. Legal Methodology. (2003).28 6 . designates some of their respective appropriate space for some items with overlapping appropriateness so that the right without definite protection scope ( such as common personality right ) becomes definite . Therefore. 1 Larenzi. If one is executed. re-determine and clarify the content of right means that law tries to seek maximum interest choice for the conflicting right. if one individual is punished by law for the damage to others even for the damage to the other individual's right caused by his tortuous act. claims that " Whenever right conflict arises. Similarly. it provides the prerequisite to solve it. Should the guilty individual undertake the responsibility? If he did. It means that when some relatively superior legal value you try to preserve damages another legal interest."3 Since the handling of right conflict inevitably leads to the observation of interest and value." idea is correct and should be followed.

We say that Mary's living right should be respected. they have the ability to make important decision to show their legal personality status. propose one's right and duty. If no complete agreement is reached between them. priority ought to be given to it and protection should be guaranteed. it is in consistent with social and personal maximum interest. form a proper expectation.If it is possible to substitute one right that does 20 HeinOnline -. As far as the requirement of maximum interest principle is concerned. Only when their decision reach complete agreement can the operation be made to separate them to attain their own independence and freedom. As for each individual of the Conjoined Twins with full consciousness. If either of the Conjoined Twins does not agree to separate their body. Different individual may have different decision. The separation right of Jodie and Mary is the existence value of each individual. to determine whether Conjoined Twins with capacity for civil right exercise separation right or not relies not only on their own decision but also on complete agreement. the conflict is actually interest conflict and the choice is based on interest observation. We all think that such a principle should be adopted in the choice of birth. it can be obviously seen that the social value and personal value of safeguarding Mary's living right is more important than those of sacrificing Mary's life. sacrifice and right exercise of all Conjoined Twins. besides maximum interest principle. It is natural that law supports such a separation. or even need guardian's guardianship. It is an universal principle. whether one right is superior to the other in quality. there is no way out even for human right group. separation. it involves the life of two independent individuals. what result will be brought about.2The principle of self-decision & coordination Self-decision means that person concerned has the right to act at one's own will. Secondly. Although they are somewhat deficient in their behavior and ability when exercising their civil right. as for the damaging degree of relative right. and carry out civil conducts and visa versa. When one right is superior to the other. separation right of the Conjoined Twins and the problem of right and duty. However. sound expression ability and good judge capability. 4.3. exercise one's right and behave according to civil law. what is more important is that the self-decision of each individual of the Conjoined Twins should be respected before a decision is made whether to exercise the separation right and other rights. rightfirst and guardian' will principle should be followed on the ground of maximum interest principle. then it is impossible to do that. It should be regarded as that they give up their efforts. the superiority of one right to the other can not surpass a bearable degree.3 The principle of right first & guardian's will When each individual of the Conjoined Twins claim right or exercise right. Adult individual of the Conjoined Twins with capacity for civil right enjoys independent legal personality. Therefore. Right first indicates that when two right conflicts arise. however among the fundamental interest conflict of Jodie and Mary's living right. that is to say. therefore.3 US-China Law Review 20 2006 . 4. determine whether there is possibility of substituting .3. the quality of those two rights ought to be compared to determine whether certain right should be first considered. not by others. Such an important decision should be made by themselves. the choice of separation agrees with such a principle. Nobody can make them have operation and get separated without their agreement.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict As regards the birth right. make one's own choice. Self-consciousness indicates that person concerned has the freedom to set one's own right and duty. it should also be taken into consideration that if a decision is made that one right is superior to the other. exercise right. living right. whether Conjoined Twins decide to separate their body or not. nobody else can make decision to separate their body for them. How to determine one decision is superior to the other depends on the following aspects: Firstly.

then such assumption is unreasonable. Legal Daily. China. which is both a manifestation of humanism as well as of responsibility to society and human being. After doctors' diagnosis. but there is such a possibility for the first on. Their parents as their guardian have the right to make a decision to do a separation operation for them. After the separation. then the assumption will be reasonable.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict not need first consideration. right-firstprinciple can also be applied. The treatment of medical workers put an end to their deformed and painful lives. therefore. 2005. 2005. If one of them is pregnant and the other insists on an abortion. guardians ought to express clearly how to exercise the separation right. heart and liver but independent gallbladder.3 US-China Law Review 21 2006 . The Conjoined Twins Liansheng Guo and Liangjing Guo were born in Lingyuan County. Right Conflict Is Not A Real Problem. The Conjoined Twins enjoy independent living right. it should also be stipulated that who is responsible for making the decision whether to separate them or not. belly. other people and society. regarding such exercise deprives her of her birth right. 43 hen it can be assumed that even if some individuals of the Conjoined Twins enjoy their living right. As two individuals with independent personality. including the decision whether they are separated or not. right-first principle ought to be equally applied. it is the guardian with prior order who makes decision. Even if they survive. When disagreements arise among guardians. the Conjoined Twins become independent individuals and enjoy their legal personality. According to legal guardianshipprinciple. The Conjoined Twins passed dangerous period after the operation and left the hospital on May 20. The birth right conflict of Nigerian Conjoined Twins with two heads involves such problems. they are the lives without value or minus value. It turned out to be a big success. What should be examined by law in such a case is whether the will of guardian is in consistent with maximum interest principle and right-first principle. which may be resulted by lung atrophy.44 This kind of separation operation with no conflict and little danger agrees with the maximum interestprinciple. 2 Hospital attached to Chinese Medical University to do the separation operation. there arises the choice issue of right priority. and the other party ought to bear the infringement of such a right. It is not doctors. it is up to guardians to decide the interest of the persons who are guarded. it should be regarded that one party who proposes birth right enjoys right priority. 2004. August 16. They shared conjoined chest. One of them insists on exercising her birth right. they surely enjoy birth right. Their parents decided to ask No. 44 Suhong Ge. because she has to rely on her elder sister's organs to continue her life. Thirdly. for these Conjoined Twins with serious defects and weak lives or those who try hard to continue their lives after treatment. the damaging degree of relative legal interest needs consideration. New Beiing Daily. and they can't even cry". "they have terribly low IQ. If there is no reasonable possibility of replacing the next right of non-priority. however the younger sister's living right is actually not complete. 4''Tiechuan Hao. 21 HeinOnline -. However. Among the conflict of each individual of the Conjoined Twins when they are exercising their right. not only right-first principle ought to be taken into consideration. but the other is against such a decision. an opinion was reached that separation operation could be carried out. May 21. Therefore. their living right is obviously lower than that of healthy individuals. This will result in additional burden for their family. as for the right exercised by each individual of the Conjoined Twins who are not adults and who do not enjoy judge ability. Among the living right conflict of Jodie and Mary. The Safe Separation of Twelve-Day-Old Conjoined Twins Girl Babies. their living quality is very low. For such a conflict. In such a case. they can not bear responsibility either to society or other people. or hospitals and other social organizations who are responsible for such decision. Liaoning Province.

the principle to be followed is self-responsibility and necessary exemption.3 US-China Law Review 22 2006 . further arguments are made as follows. For example. If nothing is done by law so that the conflict between their legal personality and right arises and develops. the decision to separate Conjoined Twins should be supported by law and 22 HeinOnline -. Special respect and protection should be granted to the independent legal personality of each individual of the Conjoined Twins in order to protect the legal personality of each individual. Civil law or special law should be made to establish the rules to deal with the conflict between the legal personality and right of Conjoined Twins. the other is to avoid the discrimination of their personality such as in the case of conjoined brothers Chang and En. to establish standard to coordinate the conflict between the legal personality and right of the Conjoined Twins and which ought to be observed by all citizens including Conjoined Twins. and the punishment for the illegal behavior of another party ought to be carried out in other ways. Even if they are Conjoined Twins. Secondly. thus receiving punishment such as detention. if either of two is legally responsible for injuring the living body of other human being. one party should be exempted from punishment. but also because they should be responsible for their own behavior. Because it is in consistent with maximum interest principle and right-first principle. and are required to bear legal responsibility accordingly. Therefore. he or she should not be punished because of the other party's illegal behavior. The general provision of civil law ought to establish definite articles concerning the legal personality and protection of Conjoined Twins and make them become definite legal system. Firstly. 5. It is up to law. because the Conjoined Twins are conjoined physically. If one's illegal behavior involves property duty. one of them should be responsible for that .If they are persons without the capacity for civil rights or those with limited or deficient capacity for civil rights. we should make our best efforts to ensure the respect and protection of their legal personality. If it is ruled by law that the sacrifice of one defective life can save the other person's healthy life. their personality ought to be equally protected. set term of imprisonment and death penalty. they can not avoid their legal duty.4 The principle of self-responsibility and necessary exemption As for the legal duty of each individual of the Conjoined Twins. the legal personality of Conjoined Twins should be respected and protected. However. This is not only because they have their own independent legal personality. are regarded as illegal behavior. in order to protect the interest of the innocent party. therefore. especially civil law is the standard for citizens' all social activities. certain contribution should be made by law to coordinate the conflict between their legal personality and right. it will result in chaos and damage the legitimate interest of the Conjoined Twins. Two tendencies ought to be avoided: one is to avoid the neglect of their legal personality. Any discrimination against and any behavior damaging the personality of Conjoined Twins are the greatest harm to them. Even if we are dealing with the right conflict of each individual of the Conjoined Twins. then it will be beneficial both to society and individuals when it is compared with the sacrifice of two lives. Self-responsibility means that each individual of the Conjoined Twins should be responsible for one's own illegal behavior.3. it is their legal agent or guardians who should be responsible for their illegal behavior. their legal personality and right exercise can be ensured by law. FurtherArguments After the discussion of the legal personality of Conjoined Twins and the above-mentioned basic principles to deal with their right conflict.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict 4. No matter they are the Conjoined Twins with single legal personality or those with two legal personalities. Law is the standard to govern common social life. especially civil law. the separation operation of the Conjoined Twins means the cost of the life of one of them.

If the medical risks are smaller than medical success. available from: http:// www. such an operation can not be done. then it is the Conjoined Twins who should bear the responsibility of operation risk. doctors and judges are not expected to bear the consequence of medical risks.uk / law research / s1-rps. whose ruling is up to courts and judges. As for the separation operation of Conjoined Twins who are not adults. Christina) 45 The Lesser of Two Evils: A Contextual View of the Case of the Conjoined Twins. namely their parents. therefore many conflicts arise and they are brought to court to rule.3 US-China Law Review 23 2006 . Take another example. which is agreed by doctors and determined by judges.ac. judges can make a decision that such an operation can not be undertaken. courts and judges can not avoid their duty. Unless it is medical fault. They are expected to rule either according to law and duty or according to custom or principles. Thirdly. it should be clearly expressed by law who has the right to make the decision to have separation operation for them: when they have the capacity to make decision at their will. it is up to them to make a decision. Even if the bearing of legal duty may involve criminal law or administrative law. First. the decision to have separation operation on Conjoined Twins involves a great potential risk. Second. if the medical risks are bigger than medical success. 23 HeinOnline -. the decision ought to be made by their legal agent. they are all legal problems.uel. judges are expected to examine the conclusions made by doctors. No matter how strong their moral pressure and social pressure are. but the self-decision ought to be based on the coordination of different individuals of Conjoined Twins. Any right conflicts of the legal personality of different individuals of Conjoined Twins are the conflicts of the civil right. then it can be determined that the choice of different individuals of Conjoined Twins are right. courts and judges enjoy final ruling.The Legal Personality of Conjoined Twins and the Coordination of Their Rights Conflict appropriate rules should be established accordingly. If the different individuals of Conjoined Twins can not reach agreement on whether to have a separation operation for them. as for any conflicts involving the legal personality of different individuals of Conjoined Twins. When Conjoined Twins are not adults or lack judge ability. as for the medical risks of separation operation. if the decision made by parents is not beneficial to children. courts and judges also have the right not to agree with parents 45 What is clear is that if persons concerned decide to have separation operation. For example. and whether the decision is out of their own will or is the result of their coordination. (Edited by Hillier.htm. judges have to determine whether their choice of separation is legal.