Justice Gault reserved his decision on Tuesday, telling the court he was conscious of the urgency involved.
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 boy so urgent heart surgery can go ahead.
Name suppression applies to the child and family.
Paul White, the 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, he 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.”
Earlier, he 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 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, he 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 was 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 were White, Grey and Adam Ross, KC, for the NZ Blood Service.
White echoed 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 New Zealand 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 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, and the the views of the parents in seeking blood from a pool of unvaccinated donors was inconsistent with established medical practice.
The baby has already had a blood transfusion, the parents' lawyer told the court. Grey explained they 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,” she said.
The condition of the baby was improving and donors were waiting outside the court today “ready willing and able” to donate blood, she told the court.
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.
“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, Grey 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.
“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 told the court. “Because she labelled them, she didn’t look at the points they made.”
Grey cited 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 was 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 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, Adam Ross, appearing for the NZ Blood Service, 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 called 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. 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. 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.”
A crowd of around 150 people gathered outside the Auckland High Court to support the parents on Tuesday.
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”.
Supporters carried New Zealand flags and anti-vaccine posters, and some motorists tooted their horns in support.
A “sheriff” van with images of Labour and National politicians behind bars was parked outside the court.
