Midwives challenge legality of vaccination order

Press release

Late on Friday 22 October 2021, the Minister of COVID-19 Response issued an order which amended the COVID-19 Public Health Response (Vaccinations) Order 2021. That order was purportedly made under the COVID-19 Public Health Response Act 2020. It now specifies that, unless midwives submit to receiving a COVID-19 vaccination by 15 November 2021, they will lose their livelihoods and their vocation.

The order now applies to most workers in the health and disability sector, as well as prisons, schools and early childhood services.

The New Zealand Midwives’ Collective is a group of midwives from around New Zealand who have come together to oppose mandatory vaccination and uphold the right to informed choice and consent. On Monday a small group of midwives filed an application on behalf of the Collective, asking the High Court to declare the vaccination order invalid.

The basis for this challenge is that midwives, like all New Zealanders, have a right guaranteed under the New Zealand Bill of Rights Act 1990 to refuse medical treatment that they do not want, whether or not anyone else agrees with their reasons for doing so. It is about the personal autonomy that we all enjoy over our bodies. If the Government wants to limit that right, it cannot do that in a regulation made under the authority of a general provision in a statute. On at least two occasions this year alone, the Supreme Court has held that “Parliament cannot abridge fundamental rights and freedoms by general or ambiguous words”. That is what has been done here and it is an affront to New Zealand’s constitutional norms.

The New Zealand Midwives Collective strongly opposes any restrictions being placed upon informed consent – a fundamental principle of midwifery in our country. They believe this is detrimental to the profession and a dangerous precedent that will adversely impact the rights of birthing families. Since the Cartwright Inquiry, it is a line that has not been crossed in health care and has been enshrined in law by the Code of Health and Disability Services Consumers’ Rights.

Informed consent, by definition, must acknowledge not only the benefits, but also any risks or alternatives. By definition, it also must be free from the threat of being denied the right to work as a midwife. The Collective says that there is an opportunity to open a solution-based paradigm, investigating legitimate alternatives and controls that have

been used successfully internationally. They do not agree that vaccination is the only answer.

The Collective understands that between 200 and 300 New Zealand midwives will decline the COVID-19 vaccination. That accounts for between 8 and 10% of all practicing midwives. If the order is not struck down, these midwives will be required to stop work on 15 November 2021. The Collective says:

“Our maternity system is already desperately short of midwives but the Government has continued to ignore our pleas to make urgent changes. There are already significant midwifery roster gaps within the DHBs. The decision to mandate this COVID-19 vaccine and the subsequent reduction in hospital midwife numbers will further increase the current workforce pressure for employed midwives and make it unsafe for the mothers and families for whom they care.”

It has been suggested that, if midwives who are Lead Maternity Carers (LMC) are unable to practice, the DHBs as the providers of last resort will have to ensure that maternity services continue to be provided safely to expectant mothers who can no longer access an LMC. The Collective questions whether there is a realistic contingency plan to cope with this shortfall. The irony is that the healthcare outcomes for mothers and babies which result from the Vaccination Order may be worse than those from which it is intended to shield New Zealanders.

The Collective says:

“We are standing up to protect the rights of women. Our profession will always draw a line when it comes to informed consent and bodily autonomy. This is a not just a midwifery issue, this is a human issue, a feminist issue and a civil rights issue. All birthing women have the right to have bodily autonomy respected and midwives are the safeguards of that. It is a grossly hypocritical demand from our government, and our professional and statutory bodies, to expect us to surrender this right. Midwives are the guardians of this right for women around pregnancy, birth and postpartum. We are midwives, supporting midwives to have the same rights as the women for whom we care.”

This statement has been authorised for release by the New Zealand Midwives’ Collective, represented by the applicants in CIV 2021-485-584 F v Minister for COVID-19 Response.