### AURTIN. TEXAS 78711

The Honorable Chet Brooks Chairman, Senate Committee on Human Resources Senate Chamber Austin, Texas 78711 Opinion No. H- 565 Re: Whether the Department ofHealth may include adopted and illegitimate children on lists of children to be included in the immunization program so long as the list contains no indication of parentage or adoption. Dear Senator Brooks:

You have requested our opinion as to whether the Department of Health may exclude the names ofillegitimate and adopted children from the lists of children to be included in the State Infant Immunization Program. Inyour request letter you note that the Department has determined that Rule 47A ofarticle 4477, V. T. C.S., requires such an exclusion.

We understand that the Infant Immunization Program, which is operated pursuant to section 2.09 of the Education Code, is administered in part by sending a notice addressed “To the Parents of
. . . .”which con,tains information concerning the Program. The list ofpersons to be so notified and their addresses is obtained from the State Registrar who in turn is provided the information by the various hospitals. The problem arises when the mother ofan illegitimate child gives her address as that of another person whom she would prefer have no knowledge ofthe birth. The Department ofHealth, out of concern for the mother’s right ofprivacy and in light ofarticle 4477, therefore excludes the mother of an illegitimate child from its mailing list.

Rule 47A ofarticle 4477 provides in part:
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The Honorable Chet Brooks, page 2 ( (H-565)

The state registrar, county clerk, or local registrar shall not issue a certified copy disclosing illegitimacy or otherwise disclose illegitimacy unless the issuance ofthe certified copy or the disclosure is authorized by order of the county court of the county inwhich the birth, death, or fetal death occurred. We need not decide whether use ofthe notice by the State Department of Health constitutes a disclosure ofa child’s illegitimate status since we believe all children have a right tothe benefits ofthe program. we perceive no rational basis for the exclusion ofillegitimate children from the program: an illegitimate child is as equally in need ofimmunization as a legitimate child. See, Gamez Y- Perez, 409 U.S. 535 (1973); Weber V. Aetna Casualty &Surety co. f 406 U.S. 164 (1972); Levy V. Louisiana, 391 U.S. 68 (1968); Giona V, American Guarantee &Liability Insurance Co., 391 U.S. 73 (1968). Itis therefore our opinion that this exclusion violates the equal protection clause ofthe Fourteenth Amendment to the federalconstitution and that the Department ofHealth must include illegitimate children in its Immunization Program. The Department ofHealth has expressed concern over invasion of the mother’s right ofprivacy. The right ofprivacy has been defined in part as
“the publicizing of one’s private affairs with which the public has nolegitimate concern. (I BilIings v. Atkinson, 489 S.W. 2d 858 (Tex. Sup. 1973), citing 62 Am. Jur. 2d, Privacy $1. Without determining the extent ofthe privacy issue, we observe that any problems involving the invasion ofthe mother’s right ofprivacy can be avoided by the adoption ofprocedures reasonably calculated to avoid publication ofinformation onthe birth. Such procedures would also satisfy any problems which might exist concerning disclosure ofillegitimacy. The post cards presently inuse may constitute a “publication” ofinformation on the birth of the’Child. Ostro V. Safir. 1N. Y. S. 2d 377 (Sup. Ct. N. Y. County 1937). However, it is generally held that the mailing ofinformation to the concerned party within an envelope is not a publication ofthat information. 53 C.J.S. Libel and Slander §82. See, Bull V. Collins, 54 S.W. 2d 870 (Tex. Civ. App. --Eastland 1932, nowrit); Annot., 24 A. L. R. 237 (1923); Annot., 46 A. L.~.R; 562 (1927). The notices can be .mailed in an envelope addressed to the parent by name rather than “To the parents of 0
. . . ‘I Other precauti6ns may involve informing the mother oftheuse to be made ofthe given address, inquiring as to whether the child will be placed for adoption, requesting an address to which the forms should be sent, etc. p. 2537The Honorable Chet Brooks, page 3 (H-565)

You have also asked whether adopted ‘children may be excluded from the Program. In our opinion there is no rational basis for classifying adopted children differently from others when such a classification results in the denial ofthe beixefits of the Program. Of course, the adopting parents rather than the natural parents are the proper persons tobe notified ofthe Program. SUMMARY Adopted and illegitimate children may not be excluded from the State Infant.Irmixunization Program. Reasonable precautions may beutilized to avoid apublication ofinformation concerning the birth of a child so as to protect any right ofprivacy the mother may have. Very truly yours,

Attorney General of Texas APPROVED:

DAVID Ma KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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