Donor blood battle: Te Whatu Ora says case is matter of life and death for baby boy

A High Court judge has reserved his decision in the battle over guardianship of a baby boy whose parents refuse vaccinated blood being used in a life-saving operation - with a decision now expected tomorrow.

The court earlier heard that the case was a matter of life and death, with Health NZ Te Whatu Ora seeking to have the courts take guardianship of the baby so urgent heart surgery can go ahead.

Paul White, lawyer for Te Whatu Ora, said there was an impasse between the views of the parents and the views of medical professionals as to what course of action is in the best interests of the child.

The case was not much different from those of Jehovah’s Witnesses who refused blood transfusions for their child, aside from the origin of the parents’ beliefs, White said.

“What we have is loving parents … with beliefs that contrast with the medical professions’ views based on science.

“His survival is actually dependent on the application being granted.

“His only option is surgery, and there’s an excellent prognosis with that surgery.”

White said cardiac specialists had advised the baby’s heart is suffering damage because of the delay in surgery due to the build-up of blood at the damaged valve.

“It’s under incredible strain.”

A crowd has gathered at Auckland High Court for both hearing days to support the family who refuse to use vaccinated blood to be used for their baby's heart surgery. Photo / Alex Burton

Justice Ian Gault reserved his decision and while there is no word on when a decision will be given, it is understood to be very unlikely to be today.

Due to the urgency of the questions about the child’s care, it is likely the decision will be given within days, possibly tomorrow, the Herald understands.

White earlier indicated the order would seek to appoint the cardiac surgeon and cardiologist as agents of the court for everything related to the treatment of the baby boy’s condition.

They are wider than just the blood transfusion but are limited as much as practical and relate just to his life-saving medical treatment, White said.

“There may need to be orders that the baby needs to remain at Starship hospital unless the clinicians allow them to leave the hospital.”

The baby is in court today, against medical advice, White said.

Sue Grey, the parents’ lawyer, said they were late to court this morning because they had difficulty taking the child from hospital against the wishes and advice of medical staff.

In court are White, Grey and Adam Ross KC for the NZ Blood Service.

White echoed the comments of Auckland University’s Immunisation Advisory Centre medical director Professor Nikki Turner, who earlier said Covid-19 was widespread in New Zealand and that would be reflected in the antibodies in the nation’s blood.

“We are dealing with a very small subset of the donor pool,” White said.

Ninety-six per cent of the NZ population of the age of 12 has received at least one dose of the vaccine, and a significant proportion of the unvaccinated remainder would have been infected with Covid-19 so would have the antibodies regardless, he said.

There have been no reported problems related to transfusions as a result of Covid-19 vaccinations, White said.

He said the views of the parents in seeking blood from a pool of unvaccinated donors was inconsistent with established medical practice.

Baby had transfusion in earlier surgery - lawyer

The baby has already had a blood transfusion, lawyer for the parents Sue Grey has told the court.

She explained the parents had signed consent forms before a surgery in good faith but blood became needed during the procedure.

“The fact they got away with it once doesn’t mean that we should effectively play blood roulette and try it again,” Grey said.

The condition of the baby was improving and donors were waiting outside the court today “ready willing and able” to donate blood, she said,

She said the delay of a couple of days to arrange unvaccinated blood would not harm the baby.

“It’s a case of balancing up one risk that we don’t fully know about and another risk we don’t fully know about,” Grey said.

“The good news ... is that [the baby] is currently improving.

“His heart is stable and he’s gaining weight and he’s happy.

“If it takes an extra couple of days to arrange safe blood that would be in the interests of safety when you balance the risk with all of the uncertainties.”

The unvaccinated donors available had matched the requirements set out in a blood transfusion medical handbook, she said.

“The law that’s really important here is informed consent, it’s protected by the New Zealand Bill of Rights ... the right to refuse medical treatment,” Grey said.

“What we’re talking about here is not just freedom, but actually a right.”

“The right to refuse medical treatment is fundamental.”

Grey took aim at medical specialists and scientists, including surgeons and immunologists, who believe the concerns of the parents are without merit. They included a Starship hospital cardiologist.

“She labelled these parents as conspiracy theorists,” Grey said.

“Because she labelled them, she didn’t look at the points they made.”

Lawyer Sue Grey (left) with the family and baby outside court last week. Photo / Alex Burton

Grey is citing information provided in an affidavit by Dr Byram Bridle, an associate professor in viral immunology at a veterinary college in Canada.

The information he provided is critical of the Pfizer Covid-19 vaccine and centres on his controversial claims of heart inflammation from spike proteins.

Last year Bridle’s claim the spike protein was harmful or toxic was circulated widely, and drew strong criticism from experts.

William Matchett, a University of Minnesota Medical School vaccine expert, told AP the spike protein causes an immune response but is not toxic. Matchett said Bridle selectively quoted or misquoted studies to support his claim.

Justice Ian Gault interrupted Grey’s lengthy submissions to query what she was actually seeking aside from opposing the order.

”What are you saying should happen,” the judge asked.

Grey suggested blood banks should begin tagging unvaccinated blood, or else introduce a stand-down period between vaccination and donation.

‘A full-throated challenge to the safety of the vaccine’

In his submissions, Ross said he is opposing an order sought on behalf of the family for the NZ Blood Service to provide what court documents filed by Grey call a “direct donor service” to facilitate the collection of blood from unvaccinated individuals.

Ross also opposed an application to join the NZ Blood Service to the guardianship application.

“There are profound implications in what is being sought in this case,” Ross said, ”In my submission an extraordinary order to be seeking.”

”The Blood Service opposes the joinder application and the interim order on the grounds they show serious procedural deficiencies,” Ross said.

“I am concerned about the use of language in this case. Your honour heard the phrase contaminated blood several times. The whole point here is the NZ Blood Service does not consider it is distributing contaminated blood.”

Ross said Grey’s submissions amounted to “a full-throated challenge to the safety of the vaccine” on the basis of claims about the risk of spike proteins.

”That is the same challenge this court has heard several times before and dismissed on its merits,” Ross said.

Ross said the request of a specific donor service for unvaccinated blood jeopardised the integrity of the NZ Blood Service: ”It is a concern that an order like this can damage and will damage an excellent blood service.”

He suggested if such a request was granted, it opened the door to other requests that were theoretically possible to achieve - such as requesting blood from a specific ethnicity but ethically and clinically bankrupt.

”There’s also a slippery slope element to it,” he said. ”We have been there before as a society.”

Ross took aim at the evidence and credentials of Bridle, submitted by Grey.

He is a doctor “of the PhD variety” not a medical doctor and lacked direct knowledge or expertise of [the] baby’s case, Ross said.

”He’s not even a clinician. It’s not an appropriate foundation. He doesn’t appear to cite any study showing the blood from donors who are unvaccinated is unsafe.”

Identity of baby and parents suppressed

The hearing began with procedural matters followed by a discussion of the automatic name suppression which applies to the child and the family.

White said mainstream media had acted responsibly and not named the baby while social and alternative media had widely named the child.

A photograph of the baby is emblazoned on a large trailer outside the court.

“Now we’re in a situation where we’ve got two different streams of media playing by different rules,” White said.

”His names, his parents’ names, are already in the public arena.”

Grey said the photo of the baby had been circulated around the world and the parents and their supporters had themselves gone public to raise money for treatment.

“It is a really unusual complicated situation. This family went public to raise some funds ... to help them through the hospital process and also to seek blood donors.”

“His name was already in public domain ... it’s got somewhat of a life of its own.”

Justice Gault allowed the media to name Te Whatu Ora as the applicant in the proceedings and Baby W as a third party.

But the Judge ordered an ongoing suppression of the name of the baby or anything that could lead to his identification.

Supporters gather outside the court

A crowd of around 150 people gathered outside the Auckland High Court to support parents who refuse to take vaccinated blood for their gravely ill baby.

They cheered as the mother entered the court just after 10am, shouting “We stand with you” and “medical freedom”.

Speaking outside court, the baby’s father thanked supporters.

“This morning we’re looking for direction and we’re looking for the best outcome for this baby.”

He said they wanted to be “the voice for the voiceless”.

He said they would now return their baby to the hospital.

Supporters outside the court are carrying New Zealand flags and anti-vaccine posters, and some motorists are tooting their horns in support. A “sheriff” van with images of Labour and National politicians behind bars is parked outside.

As Grey entered the Auckland High Court she said: “It’s obviously a hugely important case for human rights and for this little baby.”

A crowd gathers outside the Auckland High Court as an urgent hearing takes place to decide the care of a baby whose parents refuse to use blood from vaccinated donors. Photo / Michael Craig

The case has become a cause celebre for anti-vaccine activists. The parents and the 4-month-old baby have interim suppression.

The baby has pulmonary valve stenosis, where a heart valve does not open properly.

At a preliminary hearing last Wednesday before Justice Layne Harvey, White emphasised the urgency of the case. He said medical professionals were of the view a child with the same condition should have been treated weeks ago in normal circumstances.

The case has become a focal point for the anti-vaccine movement which has rallied behind the parents.

Vigils were held in support of the family last night including a gathering outside Auckland Hospital attended by dozens.

The boy’s mother told media last week they were desperate for an operation but needed to have what she called “safe blood”.

The family are wanting blood from people who have not had any Covid-19 vaccines.

The NZ Blood Service says any Covid-19 vaccine in the blood is broken down soon after injection.

“All donated blood also gets filtered during processing, so any trace amounts that may still be present poses no risk to recipients,” the service said.

Auckland University’s Immunisation Advisory Centre medical director Professor Nikki Turner earlier said Covid-19 was widespread in New Zealand and that would be reflected in the nation’s blood.

“Almost all blood in New Zealand will have Covid antibodies in it so unless you’re going to refuse all blood, I can’t imagine how you’ll get round this.

“The next thing is that Covid antibodies per se are not in any way going to be a problem for the person receiving them, they’re just going to offer the person extra protection against Covid disease.”