Health New Zealand applied to the High Court for an order that a 6-month-old baby be placed under the guardianship of the Court for the purpose of consenting to surgery and blood transfusion. In particular, the plaintiff submitted that the baby has a severe obstruction to the right ventricle, causing increased thickening.
However, his parents, while accepting the need for surgery, do not consent to blood transfusion because of concerns that the blood will contain COVID-19 mRNA vaccine with spike proteins that are not safe for the baby. Accordingly, the parents seek blood from selected donors who have not been vaccinated against COVID-19 because they believe that it would not be safe for the baby to receive blood transfusions from vaccinated people. Based on the above, the plaintiff sought an order for guardianship under Section 31 of the Care of Children Act 2004.
By decision no. CIV-2022-404-2237 of 7 December 2022, the High Court of New Zealand placed the baby under the guardianship of the Court until completion of the surgery and post-operative recovery. The Court first acknowledged that, while there could be a real risk to the safety of the baby with blood transfusions from vaccinated donors due to his age and condition, it is for the Court to assess whether using the blood from donors not vaccinated is a viable alternative to safeguard the baby’s best interest.
Based on the available evidence, the Court concluded that the respondents’ evidence does not support their belief that requiring use of blood from donors not vaccinated with mRNA vaccine is a safe and viable alternative because it is not supported by a clinician’s opinion nor peer reviewed articles pertaining to the baby’s clinical condition. Based on the above, the High Court issued an order enabling the surgery to proceed without further delay.