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In re Guardianship of Baby K.

Other Lower Courts

May 11, 2001

In the Matter of the Guardianship of Baby K., an Infant.

COUNSEL

Levene, Gouldin & Thompson, L. L. P., Binghamton (Elizabeth K. Joggerst of counsel), for petitioners.

Thomas, Collison

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& Meagher, Endicott (Daniel L. Seiden of counsel), for respondents.

OPINION

Eugene E. Peckham, S.

Joseph and Mary K. have petitioned under article 17 of the Surrogate's Court Procedure Act to be appointed guardians of the unborn child of their 17-year-old daughter, Linda (a fictitious name). The baby is viable since Linda is eight months pregnant. The sole purpose for the application is so the baby will be covered under Joseph's Blue Cross Blue Shield health insurance policy.

The question presented is whether it is permissible for the maternal grandparents to be appointed guardians of the person of the unborn baby in order for him or her to be covered under the grandfather's health insurance.

A hearing was held in this matter at which Linda and her parents, as well as the 16-year-old putative father and his parents appeared. Linda has filed her written consent to her parents being appointed as temporary guardians of her unborn child. At the hearing, counsel for the putative father and his parents stated they would also consent to the guardianship.

A letter has been submitted to the court from the General Counsel for Blue Cross Blue Shield of Central New York which states: " Blue Cross Blue Shield is willing to enroll Linda K.'s child as an eligible dependent on Mr. K.'s Blue Cross Blue Shield coverage, effective as of the date of his or her birth, provided that the K.'s have at that time been appointed guardians of the person of the child."

There is no precedent directly on point on the question presented. The closest is Matter of Thomas (118 Misc.2d 456 [Sur Ct, Nassau County 1983]) which granted guardianship to the mother of an unborn child so that she could apply for letters of administration in the estate of the deceased putative father. The court held the baby had a property right in the father's estate in reliance on the ancient doctrine that a child en ventre sa mere subsequently born alive can inherit from the deceased parent. (EPTL 4-1.1 [c]; 6-5.7.)

The Court of Appeals has held that a child injured in the womb, and subsequently born alive but disabled, has a cause of action for those injuries. (Woods v Lancet, 303 N.Y. 349 [1951].) However, where the child is not born alive letters of administration will not be issued to prosecute a wrongful death

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claim. (Endresz v Friedberg,24 N.Y.2d 478 [1969]; Matter of Logan,3 N.Y.2d 800 [1957].) And in Albala v City of New York (54 N.Y.2d 269 [1981]), the Court of Appeals held that there is no cause of action for a child born with a damaged brain allegedly as the result of ...


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