Of imbeciles and the unborn; how ‘next friend’ might preserve life


A “next friend” who seeks to spare a child from death could be an uncle or aunt, but also a family friend or interested person.

The church gives much attention to God’s grace because the creator pours it upon members of a fallen race, and by it men are fortified in their private and public lives. Over time, as the work of the Holy Spirit persists among men and wins them to the Truth, many social and cultural benefits should be expected. Since the time of Abraham, the work of the gospel has poured forth ever more broadly, from a single people, the Israelites, to tribes and families in virtually every nation.

One concept that might become useful in the work of God among Americans is the office of “next friend.” This office could become of particular interest to pro-lifers in Chattanooga and elsewhere.

A next friend is a legal representative who files a lawsuit or defends against a lawsuit on behalf of a child, a lunatic or imbecile or a person deemed incapable of defending himself.

It has a long legal tradition and might be considered a possible instrument of grace in the culture war, shielding the life of an infant in utero unable to make any written or oral defense of his interests or to make any personal appearance before a judge.

Christ’s 3 offices

Next friend bears a close resemblance to two of Christ’s three offices. The Lord Jesus holds the office of prophet, priest and king, according to the Westminster Confession of Faith. The job of the next friend seems to draw inspiration from the first two — prophet and priest. The next friend is an advocate, one who intervenes, an intercessor on behalf of one who is helpless. This is a priestly role, Christ being a beloved example by his intercessory and atoning death for sinners on the cross at Calvary and his resurrection. Insofar as we are concerned with abortion, the next friend is potentially a prophet, speaking true things, declaring against naysayers and skeptics that green is a color, water is a liquid, math involves numbers and babies are either boys or girls made in the image of God.

“A next friend, or, as he is frequently termed, a prochein ami, is a sort of self-appointed guardian who assumes the duty and responsibility of bringing a suit in behalf of a person under some disability, legal or natural. The person thus under disability, is generally (1) a minor, or (2) a person of unsound mind. *** It becomes necessary for some friend to intervene in their behalf, whenever their interests require the interposition of the Court. This friend is called the next friend, because formerly he was the nearest (or next) kinsman of the person under disability.”

The next friend must act in good faith and secure court costs.

Since a next friend becomes “an officer of the court” (which is what any lawyer is deemed) he is required to “sedulously watch and protect the interests of his ward,” Chancellor Gibson says. If the next friend fails to press the interests of the child, the judge will become become hostile to the next friend. “[T]he court not only has the power, but it is is duty, to remove him, and appoint another, who may be more faithful, or not subject to a similar temptation.” (Henry R. Gibson, Gibson’s Suits in Chancery, 1891, 1955.)

Better than a ‘guardian ad litem’

A guardian ad litem performs a similar office to next friend, his role being to assist a court in a determination of a child’s best interests.

While guardian ad litems are judicially appointed people, usually attorneys, any person can serve as a next friend of an infant plaintiff, whether related to the infant or not. One important limitation to the office of next friend is that he “must generally have some significant relationship with the minor,” one authority states. Next friends can be a child’s parents, an older sibling, a conservator or other guardian. It could be some other adult acceptable to the court, someone who does not have any conflicting interest with the child and is deemed competent to carry on the litigation.

The work of a guardian ad litem appears to be purely defensive in nature, making it distinct from the next friend. “The Court in appointing him gives him a shield, but no sword; and if in the progress of the suit he thinks a cross bill should be filed or other affirmative action taken, he should be affidavit, petition, or, if the facts are already of record, by motion, take counsel of the Court in the matter, and the the Court’s leave before he acts further.” Gibson says that when the guardian files a cross bill, he becomes in this particular instance “next friend of the infant.” It appears, then, that next friend can wield both the sword and the shield.

Any case involving a minor is in Chancery Court, the court of equity. In federal jurisdiction, any action bought by a next friend probably would require representation by an attorney.

It is a general rule that a next friend is appointed for an infant who does not have a parent or general guardian, because if a child did have a parent, that mom or dad would be responsible for pressing an action on behalf of the child for protection of his rights.

Next friend defends child in unwanted pregnancy

Might not a child facing abortion arguably be made to fit the category of a child without a parent?

Could not a mother’s announced intention to obtain an abortion remove from her any authority to speak for the interests of the child and allow for someone to press before the judge his claim to be a next friend? Facing death, such a baby needs someone to stand in place of the parents and secure his rights on the basis of what St. Paul calls “natural affections” (Romans 1:31), the abortive mother having none of these. In such an instance, the next friend files a petition in Chancery to demand that the court protect the child’s property interests and ensure all his “necessaries.” (See Infant in American Jurisprudence 2d.)

The only press report I’ve seen of something similar taking place in Chattanooga was in 1992.

An estranged husband petitioned Circuit Court Judge Sam Payne to stop his wife from having an abortion. “If the wife can make the decision about the fate of this child, then why can’t the husband make it?” the judge demanded. “But the court would never uphold the husband deciding that the wife should have an abortion against her will.” Though the judge lifted the ban, he said: “There are agencies who would love to have this child and people who would want to care for babies.” Judge Payne said he had been prepared to assign the unborn baby a guardian ad litem (Chattanooga News-Free Press, April 30, 1992).

Replicating Christ’s next friend role

The office of next friend is familiar to anyone who has read the Bible. Christ Jesus is the next friend of sinners, and pleads their cause before the bar of justice. God the Father cares for justice, and will accept no sin since He is perfect; Christ, making substitutionary atonement for the sins of his people, died for His children on the cross in an effectual act of salvation, absolving them of the penalty they deserve.

If Christ is our advocate, or prochein ami, perhaps we might find ways to replicate that benevolent mercy in the lives of others. Perhaps in God’s providence we might find a way to intervene in the life of an unborn child to rescue him from an announced intention to slay him. Chancery Court awaits such attempts, if God will only grant His people the occasion to enter the petition.