Infants

INFANTS

Persons who are under the age of legal majority—atcommon law, 21 years, now generally 18 years. According to the sense in which this term is used, it may denote the age of the person, the contractual disabilities that non-age entails, or his or her status with regard to other powers or relations.

Modern laws respecting the rights, obligations, and incapacities of children are rooted in ancient customs and practices. In 1765, sir william blackstone, in his Commentaries on the Laws of England, wrote that parents owe their children three duties: maintenance, protection, and education. Today, these three duties continue, and have been expanded by judicial and legislative advancements. The notion of children'srights has evolved into a highly controversial and dynamic area of law.

Common law held an infant, also called a minor or child, to be a person less than 21 years old. Currently, most state statutes define the age of majority to be 18. Although a person must attain the age of majority to vote, make a will, or hold public office, children are increasingly being recognized by society, legislatures, and the courts as requiring greater protections and deserving greater rights than they were afforded under common law. The law is caught in a tugof-war between two equally compelling and worthy societal interests: the desire to protect children from harmful situations and from their own immaturity and lack of experience, and the desire to give children as much autonomy as they can bear as soon as they can bear it.

Legal Rights of Children

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

What It Costs to Raise a Child to Age 18
A Two-Parent Family
EarningWill Spend
source: U.S. Department of Agriculture, Center for Nutrition Policy and Promotion, Expenditures on Children by Families, 2002.
Under $39,700 a year$127,080
$39,700 to $66,900 a year$173,880
Over $66,900 a year$254,400

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.

Child Protection

Although children do not have a constitutional right to a safe home, a permanent, stable family, or quality care, significant strides have been made to better the lives of children. The right of a state to ensure the welfare of the children within its boundaries stems from the ancient concept of parens patriae, which means "the father of his country," and was used to describe the relationship between a king and his subjects. Today, this right is limited by the parents' legal right to be free from government intrusion in the raising and rearing of their children. The state's intervention is justified, however, if a parent is not living up to his or her responsibilities or when a child is endangered, neglected, or abused. The courts may then place the child in temporary foster care and require the parent to get assistance to remedy the problem, or may terminate the parent's rights to the child if that is found to be in the best interests of the child.

In 1960, the federal government spent only a few million dollars on child protective services. By 1980, this expenditure had risen to more than $325 million. This dramatic increase probably did not reflect an actual increase in the incidence of child abuse but rather the effects of laws requiring health care and social workers to report any suspicions of child abuse, an increase in public awareness of the problem, and a broadening of the definition of child abuse. Nevertheless, children were increasingly 'falling through the cracks' and not receiving timely or effective protection from the state, and in some instances, the state was found to be not responsible for these mistakes. For example, in 1989, the U.S. Supreme Court held that the due process clause did not impose an affirmative duty on the state to protect a four-year-old boy from his father's violence (DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998). In that case, a young boy named Joshua was beaten so severely that half of his brain was destroyed and he now is permanently brain-damaged and profoundly retarded. A social worker assigned to the family had noted signs of past abuse and several trips to the emergency room, but had taken no action to remove Joshua from his family home. Chief Justice william h. rehnquist stated that the Due Process Clause "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security."

In 2002, billions of state and federal dollars were spent on child protective services; federal expenditures were more than $20 billion in 2001. Reporting rates for abuse to children have risen from 4 per 1000 in 1975 to 31 per 1000 in 1985 and 47 per 1000 in 1994. While more agencies have been created to handle the increased caseload, many reports are still screened out and caseworkers must prioritize among the cases they do eventually receive. State and federal funds are also allotted for children whose parents are financially unable to provide for their basic needs, such as food, shelter and medical attention. The Temporary Assistance for Needy Families (TANF) program is one program that grants federal money to needy parents to provide these basic needs for their children.

While the U.S. Constitution does not in any way mention the right of children to an education, every state has adopted compulsory education laws. The strides in securing education for children occurred at the same time that child labor laws were beginning to eradicate the exploitation of children in sweatshops. By the mid-1800s, several states had passed laws restricting the number of hours children could work and requiring children who worked to also attend school for a minimum number of months each year. However, because each state had different laws and competition was fierce among states eager to attract industry, many of the laws regarding child labor were not enforced. After several unsuccessful attempts at passing effective child labor laws, Congress passed the fair labor standards act (FLSA), 29 U.S.C.A. § 201 et seq., which places restrictions on the hours children may work and age limitations for children performing particular jobs and employed in certain hazardous occupations. Today, every state has child labor laws—most of which are patterned after the FLSA, although some differences do exist.

The same concern for children that brought about these protections was responsible for the creation of the juvenile justice system. From the founding of the United States until the end of the nineteenth century, children who were charged with a crime were treated the same as adults. The juvenile justice system arose from an emerging conviction that rehabilitation, not punishment, would better serve the child and the state. Today, juvenile court systems have been adopted by every state. These courts hear cases involving status offenses, abuse, dependency, neglect, and termination of parental rights. Status offenses are legal infractions based solely on the age of the person, such as truancy and curfew violations. Children in the juvenile justice system have the constitutional rights of notice, counsel, privilege against self-incrimination, determination of guilt beyond a reasonable doubt, and protection against double jeopardy. However, juveniles still do not have a federal constitutional right to a jury trial and are not generally afforded bail.

All state juvenile codes provide for a juvenile to be removed from the juvenile justice system and transferred to the adult criminal courts, depending on the offense the juvenile allegedly committed or the juvenile's prior history of delinquent behavior. Once this move is made, the juvenile is entitled to all the constitutional protections afforded adults accused of crimes, such as bail and the right to a trial by jury, which may be more sympathetic and less likely to convict than would a juvenile court judge.

Constitutional Rights of Children in the Educational Setting

Traditionally, it was assumed that students would behave and express themselves in acceptable ways, and thus their Constitutional rights did not need to be recognized or protected in any official manner. Since the 1960s, this notion has gone by the wayside. The Supreme Court has recognized that students do not shed their constitutional rights upon crossing the schoolhouse threshold. The Court has recognized that schools function as a "market-place of ideas" and that first amendment rights must receive "scrupulous protection if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes" (tinker v. des moines independent community school district, 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 [1969]).

The rights of students to wear black armbands in protest of the vietnam war, to dance, and to use obscene and vulgar language on campus are but a few of the many First Amendment issues that have been litigated. In addition, debates over school prayer, religion in a public school curriculum, and government aid to parochial schools all affect the education children receive. Many court decisions limit the fourth amendment rights of students with regard to searches for drugs, to drug testing, and to searches of their lockers.

Age of Legal Medical Consent

Traditionally, children have been deemed legally incapable of consenting to their own medical care or treatment. In general, parents have the authority to decide whether their minor children will receive medical treatment. Common law recognized an exception to the need for parental consent in cases of emergency. Statutory law has created more exceptions to this requirement, namely in cases where a child is emancipated, married, pregnant, or a parent. In addition, several states have enacted "minor treatment statutes," which typically provide that from 14 to 17 years old, a minor may consent to ordinary medical treatment. When a parent refuses to consent to medical attention for a seriously ill or dying child, even if on religious grounds, the states may act according to their parens patriae power and obtain a court order to secure the necessary medical treatment.

Owing to a high incidence of venereal diseases among teenagers, all states have adopted statutes authorizing minors to consent to the treatment of sexually transmitted diseases. Similarly, most states have laws allowing a child to seek treatment for alcohol or drug abuse without parental consent.

Constitutional guarantees of the right to abortion extend to minors, as does the right to privacy. The Supreme Court has upheld state statutes that require the consent of only one parent if the statutes also offer an expeditious judicial bypass procedure (a hearing before a judge in which the minor requests that parental consent be waived). States can no longer absolutely require two-parent notification or consent before a minor may undergo an abortion.

The Right to Testify

A child is permitted to testify in court if the judge believes that the child comprehends the meaning and importance of telling the truth, is sufficiently mature, and is able to recall and communicate her or his thoughts effectively. Most states do not have a specific age at which children are allowed to testify; consequently, even very young children are allowed to be placed under oath and testify in court if the judge determines that these requirements have been met.

further readings

Bush, George W. 2002. "Remarks on Signing the Born-Alive Infants Protection Act of 2002." Weekly Compilation of Presidential Documents (August 12).

Davis, Samuel M., and Mortimer D. Schwartz. 1987. Children's Rights and the Law. Lexington Books.

Horowitz, Robert M., and Howard A. Davidson. 1984. Legal Rights of Children. Blue Ridge Summit, Pa.: McGraw-Hill.

Houlgate, Laurence D. 1980. The Child and the State. Baltimore, Md.: Johns Hopkins Univ. Press. Humm, S. Randall, et al. Child, Parent, and State. Philadelphia, Pa.: Temple Univ. Press.

Jackson, Anthony. 1995."Action for Wrongful Life, Wrongful Pregnancy, and Wrongful Birth in the United States and England." Loyola of Los Angeles International and Comparative Law Journal 17 (April).

Jacobs, Thomas A. 1995. Children and the Law: Rights and Obligations. New York: Clark Boardman Callaghan.

Smock, Erica, Priscilla Smith, and Bebe J.Anderson. 2003."The Legal Status of the Fetus: Implications for Medical Personnel." Center for Reproductive Rights. Available online at <www.reproductiverights.org/pub_art_fetalrights.html> (accessed August 12, 2003).

cross-references

Adoption; Child Custody; Children's Rights; Child Support; Family Law; Fetal Rights; in Loco Parentis; Juvenile Law; Parent and Child; Schools and School Districts; Welfare; Wrongful Birth; Wrongful Pregnancy.

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