Parents hope judge rules seizure of sextuplets was unconstitutional

CBC News - The Canadian Press

February 29, 2008

Medical opinion, the government's duty to protect children, parental rights and freedom of religion clashed in a B.C. courtroom Friday over the seizure of three premature sextuplets.

Three of the four surviving sextuplets were taken from their home last year and given blood transfusions, contrary to the beliefs of their Jehovah's Witness parents.

They've long since returned to their parents, but the mother and father want the B.C. Supreme Court to declare that the seizure was unconstitutional.

Justice Donald Brenner said Friday that such applications often proceed in what is perceived as a life-and-death issue.

But Shane Brady, the lawyer for the parents, said the children were not in danger and because the parents weren't given the right to make their case in court before the children were taken away, the law allowing government to seize children should be declared unconstitutional.

"There was no medical emergency requiring blood transfusion," Brady told the court as he wrapped up his argument Friday. "The children's vital signs were within the acceptable range."

The sextuplets were extremely premature when born just over a year ago. Doctors suggested the two boys and two girls who remained alive should have blood transfusions, but the parents refused on religious grounds.

When the babies were just a few weeks old, the government took over their care in order for doctors to perform blood transfusions on three of the babies.

Lawyers for the provincial government have said that saving the lives of the babies outweighed the rights of their parents.

Last fall, the parents won a rare hearing allowing them to cross-examine the doctors who swore affidavits that said the babies needed blood transfusions.

"One of the motivating factors to me was to allow the parents to challenge the science," Brenner told the court Friday, just before reserving his decision to an undetermined date.

To confuse the issue even more, doctors and medical experts can't agree on a threshold for when low birth weight babies should be transfused.

"This is where the case gets quite interesting, given the wishes of the parents," Brenner said as Brady explained the broad range of medical opinion on the hemoglobin threshold considered for transfusion.

Medical studies presented at the hearing suggest the children weren't in danger of low hemoglobin levels.

In the days before the babies were seized, their hemoglobin levels were between 80 and 88 grams per litre. The studies presented to the court said levels of hemoglobin, the iron-rich protein in red blood cells, aren't low until they dip into the 70s.

"You must ask the question if this was a medical emergency," Brady told the chief justice. "The answer is no."

Margot Fleming, a lawyer for the B.C. Children's Ministry, disputed Brady's claim that the children weren't in danger.

She told the court it was impossible to tell what kind of damage could be done to the children if they were deprived of oxygen through low hemoglobin levels.

"The risk is serious, permanent and irreversible harm," she told the judge.

She noted that most medical doctors consider a hemoglobin level under 85 grams per litre to be unsafe and the ministry was using its legal power to get medical treatment to the sextuplets without the delay of a court hearing.

"If you have to wait for harm to occur, then the purpose of the legislation has been defeated," she said.

B.C., New Brunswick, Northwest Territories and Nunavut are the only jurisdictions in Canada that allow the government to seize children without a hearing.

Brady said he wants the court to rule that it is unconstitutional to do so.

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