Infants

Children do have the right to own and acquire property by sale, gift, or inheritance. Often property is given to a child as a beneficiary of a trust. In the trust situation, a trustee manages the trust assets for the child until the child reaches majority or otherwise meets the requirements specified in the trust for managing the property for herself or himself.

Children also have the right to enter into contracts. Because the law seeks to protect children from adverse consequences due to their lack of knowledge, experience, and maturity, an adult who enters into a contract with a child may be unable to enforce the contract against the child, whereas the child can enforce the contract against the adult if the adult breaches it. However, when a child enters into a contract for necessities (i.e., food, shelter, clothing, and medical attention) or with a bank, the child is legally bound and cannot later disaffirm or negate the contract. In addition, some state statutes provide

that all contracts relating to a child's business are enforceable. This allows a child the opportunity to begin a business. Aside from these limited exceptions, a child may negate a contract before, and even sometimes soon after, reaching the age of majority.

Children have the right to bring lawsuits seeking legal redress for injuries they have suffered or for rights that have been violated. Most jurisdictions require a child to have a representative during the litigation process. This representative, called a GUARDIAN AD LITEM,or NEXT FRIEND, advises and guides the child.

The right of a child to sue for personal injuries has been extended to cover prenatal injuries. Moreover, if an injured fetus is born alive and then dies as a result of her or his pre-natal injuries, the child's parents may sue for the WRONGFUL DEATH of the child. Criminal sanctions may also apply. As of 2003, more than 20 states had enacted "fetal homicide" legislation creating a separate criminal offense for actions taken against a woman that result in the death of, or harm to, her fetus.

Notwithstanding, in civil suits for MEDICAL MALPRACTICE, such a legal premise is not as simple as it may appear. First, depending upon the stage of development of a fetus, it may or may not be a viable person—with its own independent legal rights—in the eyes of the law. This controversial issue was addressed in August 2002, when President GEORGE W. BUSH signed into law the Born-Alive Infants Protection Act, P.L. 107-207, ensuring that every infant born alive, including an infant who survives an ABORTION procedure, is considered a person under federal law. The significance of this trend (treating the fetus as a separate person) is in recognizing that the unborn infant has distinct and independent rights. In prior cases and in other jurisdictions, compensation for harm to a fetus has been granted to the mother (or parents) under the legal theory of a derivative right stemming from the legal duty owed to the mother.

A second essential element of a MALPRACTICE action is the need to show that a professional doctor-patient relationship existed between an allegedly injured patient and the treating physician: this establishes that a duty was owed by the physician to his patient. In matters of obstetrics, a doctor-patient relationship naturally exists between a pregnant woman and her treating physician. If she suffers harm or injury as a result of alleged malpractice, and that harm or injury carries over to her unborn child, states permit recovery for both. But what if the mother suffers no harm or injury as a result of alleged malpractice, yet injury or harm is independently sustained by the developing fetus or newborn?

This issue has been addressed by several state courts. In the 2001 case of Nold v. Binyon, 31 P.3d 274, the Kansas Supreme Court held that a physician has a doctor-patient relationship with both mother and any developing fetus she intends to carry to a healthy full term. In Nold, the infant in question was born with hepatitis B, which was transmitted from her infected mother. Tests given to the mother prior to the baby's birth indicated that the virus was present. Normal treatment is to administer gamma globulin and a vaccine at birth; the infant received neither and so contracted the virus.

Although states may recognize a child's right to sue for prenatal injuries, the vast majority of states do not allow "wrongful life" actions. In a WRONGFUL LIFE lawsuit, the child sues a doctor for NEGLIGENCE or malpractice for failing to diagnose the child's mother with a disease that injured the child before birth or for failing to diagnose a severe, disabling condition of the child before birth. The argument continues that if the doctor had informed the child's parents of the child's condition, the mother would have had an abortion rather than deliver a child with such a debilitating condition. The child's theory in a wrongful life lawsuit is that life with the injury or debilitating condition is worse than no life at all and that he or she would have been better off having not been born.

As examples, the New Jersey Supreme Court has denied wrongful life claims, stating that "there is no precedent in appellate judicial pronouncements that holds a child has a fundamental right to be born as a whole, functional human being," and that it is almost impossible to calculate the damages in such a case (Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 [1967]). In contrast, in Curlender v. Bio-Science Laboratory, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (1980), a California court allowed a child with Tay-Sachs disease to recover for wrongful life, stating that to deny such a claim "permits a wrong with serious consequential injury to go wholly unaddressed." This court would not accept the "impossibility of measuring damages" as the sole reason to deny the child's claim.

A child may bring a lawsuit seeking emancipation from his or her parents. Emancipation is an ancient doctrine based on ROMAN LAW.An emancipated minor is a child who is entirely self-supporting and who has the legal right and duty to oversee his or her own behavior. An emancipated minor's parents surrender the right to the care, custody, and earnings of the child. Once emancipated, the child is precluded from demanding that his or her parents continue to support him or her. Historically, an express agreement between the PARENT AND CHILD, the marriage of the child, the entry of the child into the armed forces, or responsible conduct on the part of the child were all sufficient factors in seeking emancipation. Today, the doctrine is seen as a mechanism for ending troubled parent-child relationships and a way to alleviate the difficult task of finding foster families for older teenagers who have been taking care of themselves.