Who Can File a Birth Injury Claim? Parents’ Rights Explained

A newborn cannot hire a lawyer or file a lawsuit. So when a baby is injured by medical negligence, who is legally allowed to bring the claim? In most cases, the answer is the parents — but the details depend on your state, your family situation, and whether the claim belongs to the child, the parents, or both.

Legal disclaimer: This article is for general information only. It is not legal advice and does not create an attorney-client relationship. Standing rules and procedures differ by state. Consult a licensed attorney in your state about who may file in your family’s situation.

The short answer: parents file on the child’s behalf

The law recognizes that an infant or young child cannot file a lawsuit on their own. LawInfo explains that “most states allow the parent of a child who suffers an injury during childbirth to have the standing to sue on the child’s behalf.” In practice, this means a parent steps into court as the child’s representative, and the claim itself belongs to the child.

Standing — the legal right to bring a claim — is the threshold question in every case. For birth injury claims, standing usually flows from the parent-child relationship. The parent files “as next friend” or in a similar representative capacity, depending on the state’s terminology, and any recovery for the child’s injuries belongs to the child, not the parent.

The child’s claim vs. the parents’ claim

It helps to understand that a birth injury can generate more than one legal claim:

• The child’s claim. This is the main claim. It seeks compensation for the child’s injuries: medical expenses (past and future), rehabilitation, specialized equipment, lost earning capacity, and pain and suffering. Because many birth injuries require lifelong care, this claim often represents the largest part of a case.
• The parents’ claim. Parents may have their own separate claim for losses they personally suffered — for example, medical expenses they paid for the child’s care, lost wages from caregiving, and in some states, emotional distress or loss of consortium. The exact scope of a parental claim varies significantly by state.

An experienced birth injury attorney evaluates both claims together, because the deadlines and rules for each can differ. In some states, the parents’ claim has a shorter deadline than the child’s — another reason not to delay seeking advice. Our statute of limitations guide covers how deadlines differ.

Guardians ad litem: when courts appoint a representative

In some jurisdictions, a parent cannot simply file in their own name — the court must formally appoint someone to represent the child’s interests. LawInfo notes that “in some jurisdictions, this would require the child’s guardian ad litem to file the lawsuit,” and that “the court can appoint you as your child’s guardian ad litem and file the lawsuit in your name as the child’s representative.”

A guardian ad litem (Latin for “guardian for the lawsuit”) is a person the court designates to protect the child’s interests during the case. In birth injury practice, the guardian ad litem is very often one of the parents. The appointment is a procedural step, not a judgment on anyone’s parenting — it exists because the law wants an accountable adult safeguarding a minor’s legal rights.

Your attorney handles this appointment as part of filing the case. It typically involves a straightforward court application, and it does not give the guardian any authority beyond the lawsuit itself.

Both parents, one parent, or a non-parent guardian

Family situations vary, and standing rules account for that:

• Both married parents generally may file together on the child’s behalf, and often both are named.
• A single parent with legal custody can typically file alone. If custody is shared, the other parent may need to be involved or notified, depending on state rules.
• Unmarried parents — the birth mother generally has standing; a father’s standing may depend on whether paternity is legally established in that state.
• Adoptive parents have the same standing as biological parents once the adoption is finalized.
• Non-parent guardians — grandparents, other relatives, or court-appointed guardians with legal custody of the child can generally bring the claim in the parent’s place.
• Foster parents usually cannot file without a specific court appointment, since legal custody typically remains with the state or agency.

If there is any disagreement between parents about whether to file, courts can resolve it — but internal family conflict is one more reason to get legal guidance early, before deadlines complicate the picture.

What about the mother’s own injuries

Birth injury claims focus on the child, but mothers are sometimes injured by the same negligence — for example, a delayed C-section that harms both mother and baby, or a mismanaged hemorrhage. A mother injured during labor or delivery has her own personal medical malpractice claim, separate from the child’s claim.

The mother’s claim follows the standard adult malpractice rules of her state, including the standard (usually shorter) statute of limitations that applies to adults. If both mother and child were harmed, an attorney typically pursues both claims together while tracking each one’s deadlines separately. For the broader picture of what any birth injury claim requires, see what a birth injury claim is.

How settlements for minors are protected

When a birth injury case settles, courts take a special interest — because the injured party is a child who cannot consent to the deal. In most states:

• Court approval is required. A judge reviews the settlement to confirm it is fair and in the child’s best interests before it becomes final.
• Funds are protected. Money belonging to the child is typically placed in a restricted account, a court-supervised trust, or a structured settlement that pays out over time — not handed to the parents to spend freely.
• Attorney fees are reviewed. Courts often review contingency fees in minor settlements to ensure they are reasonable.

These protections exist because birth injury recoveries are meant to fund the child’s lifelong needs. Our guide to how birth injury settlements are paid explains trusts and structured settlements in detail.

Preparing for your first attorney conversation

Knowing who can file is only half the picture — the other half is being ready when you pick up the phone. Birth injury attorneys evaluate cases quickly when families arrive organized, and most offer free initial reviews. A little preparation makes that first conversation far more productive:

• Gather the basic facts. Your child’s full name and date of birth, the hospital and delivering provider’s names, and a brief timeline of what happened. You do not need the complete medical file yet — the attorney’s office will request records on your behalf with your signed authorization.
• Bring custody paperwork if relevant. If you are divorced, unmarried, or a non-parent guardian, bring the custody order or guardianship papers. The attorney needs to confirm standing before going further, and having the documents avoids delays.
• List your questions. Ask who will actually handle the case, how the firm works with medical experts, how contingency fees and case costs work, and what the realistic timeline looks like. Our guide to finding the right birth injury lawyer has a longer list of vetting questions.
• Be honest about timing. Tell the attorney when the injury occurred and whether you have already spoken to anyone about deadlines. Because filing deadlines vary by state — and the parents’ and child’s claims can have different clocks — the attorney needs accurate dates to protect your rights.
• Do not sign anything from the hospital’s insurer first. If an insurance representative contacts you with a quick settlement offer or a request for a recorded statement, politely decline until you have your own legal advice. Early offers rarely reflect the full value of a child’s lifelong needs.

One more reassurance: contacting an attorney is not the same as filing a lawsuit. The first step is almost always a confidential records review by independent medical experts. Many families learn their situation does not support a claim — and that honest answer, delivered early, is itself valuable.

Frequently asked questions

Can grandparents file a birth injury claim?

Generally only if they have legal custody or guardianship of the child, or if a court appoints them. Concerned grandparents without custody should encourage the parents to seek legal advice promptly.

Do both parents have to agree to file?

In most situations both parents participate, but the exact requirement depends on custody arrangements and state law. A disagreement between parents does not automatically block a claim — courts have procedures to resolve it.

What if the parents are divorced?

The parent with legal custody (or both parents, if custody is shared) typically brings the claim. Custody orders and state rules determine the details, which is why the attorney will ask about custody early on.

Can I file if my child is now a teenager?

Possibly. Many states extend (“toll”) the filing deadline for minors, sometimes until the child turns 18 — but some states impose hard outer limits regardless of age. Do not assume either way; the answer is state-specific and worth a prompt legal opinion.

Does filing a claim require going to court?

Filing a lawsuit starts a legal process, but most birth injury cases resolve through settlement rather than trial. The guardian ad litem or parent representative approves any settlement, and the court reviews it to protect the child’s interests.

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Injury Claim Guide is an informational resource, not a law firm, and this article does not provide legal advice. No attorney-client relationship is created by reading it. Who may file a birth injury claim, how representatives are appointed, and how minors’ recoveries are protected all depend on state law. If you believe your child was injured by medical negligence, consult a licensed birth injury attorney in your state as early as possible.