Couple seek ruling that B.C. was wrong to force transfusions without a hearing
VANCOUVER — Three of the sextuplets born to a Jehovah’s Witnesses couple in January are at home and the fourth is expected to join the family soon, the Supreme Court of British Columbia heard yesterday during procedural motions about a case concerning parental rights, religion and power of the state.
Two of the six babies — who were born at just 25 weeks gestation — died soon after birth, triggering a battle that has pitted the religious beliefs of the parents against the authority of the provincial Ministry of Children and Family Development, which ordered the four surviving infants to have blood transfusions against the wishes of the parents.
Jehovah’s Witnesses accept most modern medical practices but are opposed to blood transfusions, which they see as a violation of the scriptures.
At issue in court are applications by the parents, who are seeking a ruling that the provincial Ministry of Children and Family Development violated their constitutional rights when the babies were apprehended by the state so they could be given transfusions.
But before legal arguments got under way yesterday, John Burns, one of the family’s lawyers, addressed what he thought was a more pressing question for many of those in the courtroom.
“How are these little babes doing?” he asked.
He answered his own question by saying the father, a young man who sat quietly in the front row of the public gallery, had told him the babies are all fine.
“He tells me this morning the three infants are at home and his wife is caring for them,” he said, adding that the fourth baby remains under special medical care but is expected to come home soon, too.
“We can breathe a sigh of comfort,” said Mr. Burns.
Later, another family lawyer, Shane Brady, said two of the babies are girls and two are boys. A boy remains under medical care for unspecified reasons.
He said all the babies are doing well now, but he couldn’t predict the future.
“The long-term health? No one knows,” he said.
The parents can’t be named because of a court ban that was brought in to protect their identities.
In applications before Chief Justice Donald Brenner, the family is seeking a ruling that the director of Children and Family Development was wrong to order the babies apprehended without giving the parents the right to contest the decision in court.
“The parents say that the government should be held accountable,” Mr. Brady said outside court. “You’ve got to give the parents an opportunity to defend themselves.”
He said if the parents had been given an opportunity to contest the initial apprehension orders, the scenario at the hospital might have turned out very differently.
Mr. Brady said neonatal experts can be produced who will testify that the babies didn’t urgently need blood transfusions, and that their health could have been protected with alternative medical procedures.
But presenting that argument in court may be difficult, as Judge Brenner yesterday ruled that the applicants won’t have the right to cross-examine doctors from BC Children’s Hospital.
The doctors filed affidavits stating that, in their medical opinion, the babies were in need of transfusions at the time they were apprehended.
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Judge Brenner said the application calls for a judicial review of the record, and he didn’t want to open up the hearing up to cross-examinations and the presentation of new evidence.
Mr. Brady said despite the limitation on cross-examinations, the family will still be able to make a case and he is hopeful the court will find that the parents had a right to a hearing before the state apprehended the babies and ordered transfusions.
Mr. Brady said the case should be of interest to all parents, not just those that are Jehovah’s Witnesses, because it is about the rights of parents to decide what is best for their children.
He added that B.C. is the only province in Canada that allows the state to apprehend children and to authorize medical treatment without obtaining a court order.
The babies received transfusions when doctors became worried about dropping hemoglobin levels.
Court heard the first baby was transfused when her hemoglobin level reached 88 grams per litre, and the others were treated when they reached levels of 84 g/l, 82 g/l and 80 g/l.
“The four infants were transfused because their hemoglobin had reached an arbitrary level [not because it was medically necessary],” he said.
Judge Brenner asked lawyers from both sides to meet to determine when the case might proceed, with a date yet to be set.