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The lawyer for the Waikato couple who refused to let doctors use vaccinated blood in a life-saving surgery for their gravely ill baby has announced there will be no appeal to the High Court ruling.
In a landmark ruling yesterday, Justice Ian Gault ruled in favour of health authorities who sought court guardianship of the 6-month-old baby after his parents refused a blood transfusion and instead wanted a court order to receive blood from exclusively unvaccinated donors.
The lawyer for the parents, Sue Grey, and spokesperson and former TV Host Liz Gunn said in a social media post that the team had considered an appeal and were very grateful for those who have generously shared their expertise on this.
“Our conclusion is that there is no time to appeal due to the court giving its decision at the close of business yesterday and the complex process where a stay is required.
“The appeal court is accordingly clearly not a suitable forum to resolve this important matter for [the baby].”
The court delivered its ruling just after 6pm yesterday in the landmark case of a gravely ill baby needing a blood transfusion as part of life-saving surgery.
Justice Gault ordered the baby, who has automatic suppression, to be placed under the guardianship of the court “from the date of the order until completion of his surgery and post-operative recovery to address obstruction to the outflow tract of his right ventricle and at latest until 31 January 2023″.
His ruling said the baby’s parents remain his legal guardians aside from the medical matters covered in the order. The judgment requires two Starship hospital doctors to at all times keep the parents informed of their baby’s condition and treatment.
Supporters of the parents and anti-vax campaigners gathered outside the High Court at Auckland during the proceedings. Photo / Michael Craig
Justice Gault had reserved his decision following the marathon hearing where Paul White, a lawyer for Te Whatu Ora, sought an order granting the court guardianship in respect of the six-month-old’s medical care.
The baby has a heart valve disorder requiring urgent surgery. Medical experts have said he would normally have been treated long ago and the pressure building up behind his ear.
“His survival is actually dependent on the application being granted,” White said.
Justice Gault also declined an order sought by Grey for the NZ Blood Service to establish a tailored donor service for the boy to receive blood exclusively from unvaccinated donors.
A lawyer for the blood service, Adam Ross KC, on Wednesday described the request for that order as exceptional and without precedent. Ross said it would jeopardise the integrity of the donor service and open the door to ethically and clinically bankrupt requests regarding donor blood.
“It is a concern that an order like this can damage and will damage an excellent blood service,” he said.
“There’s also a slippery slope element to it.”
White said the safety of the vaccine has been proven medically and by the courts.
He said specialists believed the child’s heart is suffering damage because of the delay in surgery due to the build-up of blood resulting from pulmonary valve stenosis.
The parents and the baby, who was born two months premature, were in the packed public gallery for a short time on Tuesday morning.
The scope of Justice Gault’s order enables medical professionals to make an assessment as to whether it is safe for the baby to leave the hospital ward before and after surgery. The baby was taken to court on Tuesday by his parents against the advice of medical professionals.
In his conclusion of the 23-page judgment, Justice Gault said he accepted the parents of the baby had genuine concerns about the risk of using blood from vaccinated donors.
“However, the issue here is what is in [the baby’s] best interests,” Justice Gault said.
The parents’ alternative proposal was not viable, the judge said.
“I cannot conclude it is a safe alternative that is in [the baby’s] best interests.”
“For these reasons, and given that [the baby] needs urgent surgery, an order enabling the surgery to proceed using [NZ Blood Service] blood products without further delay is in [the baby’s] best interests.”
The judgment also traverses the fact, revealed in court on Tuesday, that the baby boy has already had a blood transfusion of the type opposed by his parents, in October this year.
“After the procedure, [the baby’s] parents were distressed to hear that clinicians had needed to give [the baby] ‘a top up’ of blood. Although they had consented, [the baby’s] parents told the team that if any further procedures were to be done going forward, they would have to find an alternative as the parents’ wish was not to have any blood other than blood that did not contain the Pfizer vaccine, mRNA, the spike protein or any other associated contaminants that may cause myocarditis or clotting.”
Justice Gault’s judgment repeatedly said the parents are loving and want what is best for their child.
However, it also describes a meeting with a doctor at Starship hospital where a “support person” hijacked a meeting with the parents. The person pressured the specialists with theories about conspiracies in New Zealand and went as far as to claim infants were dying from transfusions at Starship hospital, the judgment said.
The ruling is already drawing a furious reaction from the anti-vaccine movement.
People gathered outside of the High Court at Auckland as Health New Zealand sought guardianship of a baby in need of heart surgery after the parents refused to allow blood from vaccinated people to be used. Photo / Alex Burton
Gunn, now an anti-vaccine activist, appeared in court beside the parents when they took their baby to the hearing against medical advice.
She later addressed the crowd of supporters outside. In an audio message posted to social media shortly after the decision, she sounded near to tears and also revealed she had trespassed from Starship hospital for 48 hours on Wednesday morning on what she claimed were spurious grounds.
“New Zealand I have absolutely devastating news,” she said.
“Little [baby] is going to be handed to Starship hospital. This is wrong on every level.”
The NZ Freedom and Outdoors Party, of which Grey is co-leader, said on social media in response to the ruling it was “a bad day in NZ law and medicine and human rights and logical sense.”
White had earlier argued applications for court guardianship for ill children whose parents refused blood transfusions most commonly occurred with Jehova’s Witnesses, who believe it is God’s will not to receive blood.
About a decade ago, there were two cases where the courts granted temporary guardianship of Kiwi Jehovah’s Witness children so they could receive critical medical care.
