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The parents of a New Zealand baby at the centre of a legal dispute that has made global headlines will not be appealing against a judge’s decision to hand guardianship of the child to the High Court.

The four-month-old — known only as Baby W — requires urgent open heart surgery, with both blood and blood products required for the operation and potentially its aftermath.

Te Whatu Ora/Health New Zealand took the case to court because the parents refused to allow blood transfusions from anyone who might have had the Pfizer covid-19 vaccine.

The NZ Blood Service does not differentiate between blood from vaccinated and non-vaccinated people, saying there was “no evidence that previous vaccination affects the quality of blood for transfusion”.

A judge on Wednesday ruled in favour of Te Whatu Ora, allowing the surgery to go ahead with whatever product the NZ Blood Service provides. Doctors, having been made agents of the court for the surgery, said on Wednesday afternoon they would be ready to operate within 48 hours.

The family’s lawyer Sue Grey and high-profile media supporter Liz Gunn said this morning there was no time to appeal against the court’s decision, but they had confidence the child would “get the best possible care with the best, safest blood” because “the government cannot afford anything to go wrong for Baby W as the world is watching”.

“The priority for the family is to enjoy a peaceful time with their baby until the operation, and to support him through the operation,” the pair said in a post on the New Zealand Outdoors and Freedom Party Facebook page.

Grey co-leads the party.

The baby will be in intensive care for up to a week and under Te Whatu Ora’s guardianship possibly until the end of January, allowing time for their recovery. The doctors were told to keep the parents “informed at all reasonable times of the nature and progress of [the baby’s] condition and treatment”.

Te Whatu Ora has been approached for comment.

Judge’s ruling expected
The ruling should not have come as a surprise, University of Otago bioethics lecturer  Josephine Johnstone told Morning Report on Thursday.

“This may seem like a very 2022 case and it is in many ways, but it connects to lines of decision over time where there have been disputes about what’s in the best interests of a child that has very serious medical needs,” she said.

“So this 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, which is sort of similar to this. In many ways it’s consistent with those decisions. It’s not really a break in that way.”

Johnstone said the parents’ authority over their child’s health and upbringing was being limited in only a very minor way.

“The parents still have all of the other decision-making authority that parents have. And parents do have enormous latitude to make decisions about how to raise their children — what religion to raise them, what kinds of beliefs, what kinds of home to create, what kind of traditions, they have enormous decision-making power about children’s [medical treatment], but it’s not unlimited.

“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.”

Johnstone’s view was backed up by Rebecca Keenan, a former nurse who now works as a barrister, specialising in medical law.

Put child ‘firmly first’
“[The court has] put the child firmly first and have gone by the evidence and supported the health board,” she told Morning Report.

“From reading the judgment, you can see that the parents have been taking their baby out of hospital, against medical opinion, and there’s obviously been a real breakdown in the relationship between the parents and the medical staff.”

Wednesday’s judgment outlined a meeting in late November during which the parents’ support person “proceeded to pressurise the specialists with her theory about conspiracies in New Zealand and even said that deaths in infants getting transfusions were occurring in Starship Hospital”.

Johnstone said while having a support person in meetings with medical staff was a right, it was clear in this case they were not helpful.

“One has to imagine that the involvement of some of the anti-vaccine campaigners has escalated not just this case at the national level, but even the discussions between the family and their medical team, so that’s explicitly mentioned in the case and is definitely a factor in how things must have got to the point where a court order would be needed.”

While not an unexpected ruling, Johnstone fears it might further strain the relationship between parents with alternative views on medical matters and their doctors.

“Any family who has these views and has a very sick child, their healthcare providers are going to have to work that much harder to keep them engaged and keep their trust … a big challenge,” she said.

Pleased over care
Speaking to RNZ’s First Up earlier on Thursday morning, Deputy Prime Minister Grant Robertson said he was “pleased” Baby W would soon be getting the care he needs.

“Nobody underestimates the emotion and the challenge and the difficulty here, but we have to do what’s right for the child.”

The case has made headlines globally, with coverage on BBC News, CNN and The Guardian.

This article is republished under a community partnership agreement with RNZ. 

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