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 

of Health 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 of illegitimate and adopted children 

from the lists of children to be included in the State Infant Immunization Program. In your request letter you note that the Department 

has determined that Rule 47A of article 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 of persons 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 of an illegitimate child gives her address 

as that of another person whom she would prefer have no knowledge of the 

birth. The Department of Health, out of concern for the mother’s right 

of privacy and in light of article 4477, therefore excludes the mother of 

an illegitimate child from its mailing list. 

Rule 47A of article 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 of the certified 

copy or the disclosure is authorized by order of 

the county court of the county in which the birth, 

death, or fetal death occurred. 

We need not decide whether use of the notice by the State Department of 

Health constitutes a disclosure of a child’s illegitimate status since we believe 

all children have a right to the benefits of the program. we perceive no 

rational basis for the exclusion of illegitimate children from the program: an 

illegitimate child is as equally in need of immunization 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). It is 

therefore our opinion that this exclusion violates the equal protection clause 

of the Fourteenth Amendment to the federalconstitution and that the Department of Health must include illegitimate children in its Immunization Program. 

The Department of Health has expressed concern over invasion of the 

mother’s right of privacy. The right of privacy has been defined in part as 

“the publicizing of one’s private affairs with which the public has no legitimate 

concern. (I BilIings v. Atkinson, 489 S. W. 2d 858 (Tex. Sup. 1973), citing 62 

Am. Jur. 2d, Privacy $1. 

Without determining the extent of the privacy issue, we observe that any 

problems involving the invasion of the mother’s right of privacy can be 

avoided by the adoption of procedures reasonably calculated to avoid publication of information on the birth. Such procedures would also satisfy any problems 

which might exist concerning disclosure of illegitimacy. The post cards presently 

in use may constitute a “publication” of information on the birth of the’Child. 

Ostro V. Safir. 1 N. Y. S. 2d 377 (Sup. Ct. N. Y. County 1937). However, it is 

generally held that the mailing of information to the concerned party within an 

envelope is not a publication of that information. 53 C. J. S. Libel and Slander 

§ 82. See, Bull V. Collins, 54 S. W. 2d 870 (Tex. Civ. App. --Eastland 1932, 

no writ); 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 of the use to be made of the given address, inquiring as to whether the 

child will be placed for adoption, requesting an address to which the forms 

should be sent, etc. 

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The 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 of the beixefits of the Program. Of course, the adopting parents rather 

than the natural parents are the proper persons to be notified of the Program. 

SUMMARY 

Adopted and illegitimate children may not be 

excluded from the State Infant.Irmixunization Program. Reasonable precautions may be utilized to 

avoid a publication of information concerning the 

birth of a child so as to protect any right of privacy 

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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