Infants

Author:Jeffrey Lehman, Shirelle Phelps
 
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Persons who are under the age of legal majority?at COMMON 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'S

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RIGHTS 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
Earning Will 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...

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