A New Zealand high court judge has ruled in favour of health authorities who sought guardianship of a baby boy after his parents refused to consent to a transfusion of “vaccinated blood” for a life-saving operation.
The landmark decision, delivered on Wednesday, is expected to have wide-ranging ramifications and has become a focus of protests for the anti-vaxxer movement, which held demonstrations outside the courtroom.
Have there been similar cases elsewhere?
In a similar case earlier this year, an Italian court ruled against the parents of a two-year-old boy who demanded that doctors use blood transfusions only from unvaccinated donors. The boy required urgent heart surgery.
The parents of the two-year-old put forward a list of 40 unvaccinated people who were willing to donate their blood but similarly to New Zealand, Italy’s blood service told the court that using the blood of unvaccinated people had no scientific basis because the vaccine was not transmitted with the transfusion.
Medical professionals in places such as the US and Canada have reported patients requesting unvaccinated blood, and last month the UK government rejected a petition asking it to create a separate blood and organ service for those who did not receive the Covid-19 vaccination.
In New Zealand there has been a “significant increase in potential blood recipients asking for blood from unvaccinated donors or asking about directed donation”, the blood service told the court, and noted the trend in other countries.
When can a New Zealand court impose medical guardianship?
The court has the power, under the Care of Children Act 2004, to appoint a guardian either generally or for a particular purpose – including appointing a doctor as an agent of the court for the giving of consent to medical treatment involving blood transfusion – as long as the welfare and best interests of a child are given “paramount consideration”.
In this case, justice Ian Gault gave the baby’s paediatric heart surgeon and cardiologist guardianship “for the purpose of consenting to surgery to address the obstruction and all medical issues related to that surgery, including the administration of blood”.
That guardianship will last until completion of his surgery and post-operative recovery – likely to be January 2023 at the latest. The parents will retain guardianship in all other matters.
Have there been other similar decisions in New Zealand?
This case appears to be the first in New Zealand about blood transfusions and the Covid-19 vaccine, but there have been cases in the past 10 years where the courts have stepped in, mostly in connection with parents’ religious beliefs.
In 2013, the 10-month-old daughter of a Jehovah’s Witness couple was put into the guardianship of the high court for nine months so doctors could give her life-saving cancer treatment.
A case a year earlier reached a similar conclusion after the Jehovah’s Witness parents of a two-year-old girl would not consent to the kidney and liver transplant she needed because of the use of transfused blood, which is contrary to their faith.
In 2015, a father refused medicine for his HIV-positive child because he believed it would kill his child. The court ruled in favour of the clinicians.
What are legal and ethical experts saying about the case?
A medical lawyer and former nurse, Rebecca Keenan, told broadcaster RNZ on Thursday that Gault had carefully weighed up the decisions of the family against standard medical practice and had followed well-established laws.
“The court will focus solely on the child … and they have put the child firmly first and have gone by the evidence and supported the health board,” Keenan said.
University of Otago bioethics lecturer Josephine Johnstone also told RNZ that while this may seem like a “very 2022 case” in Covid times, the decision was in line with previous similar cases.
“It is consistent with previous cases around the refusal of blood products for children whose parents are Jehovah’s Witnesses … or refusal of medical care for cancer treatment for children whose parents have alternative health and science views,” she said.
“In very rare cases, where it’s a life-and-death situation, we can expect the courts to step in – and that’s exactly what happened.”
