Health NZ has told a judge the mother of a sick baby gave consent for an earlier blood transfusion as the dispute over his heart surgery continues at the High Court in Auckland.
The child, who cannot be named because of a court order, has the heart condition pulmonary valve stenosis and requires an operation to clear a valve obstruction.
The baby's parents say they want the surgical procedure to go ahead, but they don't want that to happen with blood donations from people who have been vaccinated against COVID-19.
The couple says, instead, they have found their own unvaccinated donors, who are willing to provide blood.
While both vaccinated and unvaccinated New Zealanders can donate their blood to the New Zealand Blood Service, the donations aren't kept separately, and the New Zealand Blood Service does not currently support directed donations, made by family and friends.
Last week, Te Whatu Ora Health New Zealand made an application under the Care of Children Act, for guardianship of the baby to be temporarily placed into the court, to allow the child's heart surgery to go ahead under the usual process.
Before the hearing got underway on Tuesday, around 100 protesters gathered outside the Auckland High Court.
On Tuesday, as the hearing began at the High Court before Justice Gault, Paul White, the lawyer acting for Te Whatu Ora, said if that application was granted the court would appoint two sets of agents for the child.
White said medical agents would be appointed to deal with the baby's condition and treatment, but the child's parents would remain the agents of any other decisions for their baby.
"His survival is actually dependent on the application being granted," White said.
He told the court because of the child's condition, "his only option is surgery."
White said all parties want the baby to have the operation, and all agree blood products are going to be essential.
White told the court previously when the baby was having an earlier procedure a blood transfusion was given to the child with the mother's consent.
"So it's curious now that such a firm position is taken to further blood products when there was already an earlier consent to blood products being administered, which were administered and there haven't been any adverse consequences to the baby from that," White said.
But the family's lawyer, Sue Grey, said "the fact they got away with it once doesn't mean that we should effectively play blood roulette and try it again".
White told the court blood transfusions are happening every day and there hasn't been evidence of reported problems related to transfusions as a result of COVID-19 or the vaccines.
Grey said people who have been identified by the family as being unvaccinated people willing to donate their blood were outside court.
"There's ample evidence that NZ Blood and the hospital can do it, they just don't want to do it," she said.
She added that "just as a delay can create risk for this baby, it's very clear that blood that's contaminated can create a risk for this baby".
Lawyers for the Blood Service said what the family is seeking is not in the best interests of the baby.
"The whole point here is that the New Zealand Blood Service does not consider that it is distributing contaminated blood, and if it thought there was a serious argument that it was, of course it would not do that," said Adam Ross KC.
As the parents left the court to take the baby back to the hospital, the father told the media they were looking for the best outcome for the child.
"So I open my bible up and open the page and my eyes turn down to a scripture, the scripture said 'you guys be the voice for the voiceless,'" he said, to loud cheers from the supporters outside the court.
When asked by the media if they had a backup plan, the father responded by saying, "all the plans are that he gets the blood that we need for this operation to be a success, so every plan is exactly the same as plan a".
"Then we'll go to plan b and plan c, which is to get the blood that he needs to eliminate those risks. There are many people at work around the world supporting us and helping us," the father said when asked what happens if the court case goes against them.
Justice Gault has reserved his decision, but told the court he was conscious of the urgency involved.
