### E Y 

### GENERAL

March 

### 13, 1962

Honorable Dan Brazil OpinionNO. 

### ~~-1278 CountyAttorney Angelina County Lufkin, Texas

Dear Mr. Brazil: Re: Whether it is a violation of law for a'father to act as midwife on the delivery of his own childwithout being a registeredmidwife.
We have studiedyour letter requestingan opinion of this office on the question ofwhether it is a violation of law for a father to act as a midwife on the delivery of his own child without being a registeredmidwife.

We have examined the statutes of this State and have not found any statute requiring a midwife to register or secure a license. The only question that could arise from the conduct outlined in your request is that such conductmight constitute the illegal practice of medicine.Articles 

### 739through 

### 741,Vernon's Penal Code, set forth the terms and provisions of this offense. Article 

### 4510,Vernon's Civil Statutes, and Article 

### 741,Vernon's Penal Code,define what is meant by "practicingmedicine." Article 

### 741provides as follows:

#'Any person shall be regarded as practicingmedicinewithin the meaning of this Chapter: "1. Who shall publicly profess to be a physician or surgeon and shall diagnose, treat or offer to treat any disease or disorder,mental or physical, or any physicaldeformity or injury, by any system or method, or to effect cures thereof. "2. Who shall diagnose, treat or offer to treat any disease or disorder,mental or physical, or any physicaldeformity or injury, by any system or method, or to effect cures thereof and charge therefor,directly or indirectly,money or other compensation; provided,however that the provisions of this Article shall be cons

E rued with and in view of Article 740, Penal Code of Texas and Article 4504, Revised Civil Statutes of Texas as contained in thisAct.Honorable Dan Brazil, page 2 ('~-1278)

Acts 1907 p. 224; Acts 1949, 5lst Leg., p. 160, ch. $4, §20(b);Acts 1953, 53rd Leg., p. 1029, ch. 426, 311." As will be noted from Article 741 there are two distinct ways by which a person shallbe regarded as practicingmedicine. We assume from your letter that the husband involvedhas not publicly professed to be a physician or surgeon. Therefore, if he is to be regarded as practicingmedicine itmust be under the provisions of Section 2 of Article 741.

One of the essential elements of Section 2 is that such person receive, nosis, directly or indirectly,compensationfor a diagor treatment of a disease,disorder or injury. Banti v. State, 289 S.W.2d 244 (Tex.Crim.1956), is the leading Texas case on this question. The Courtheld that a woman who had received compensation for acting as a midwifewas not "practicingmedicine', as that term is defined in Article 741, Vernon's Penal Code. The Court said in part as follows:

"Itwould appear, however, that the Legislature of Texashas not defined the practice of medicine so as to include the act of assisting women in parturition or childbirth insofar as the practice of medicine without registeringa certificateevidencing the right to so practice is made punishableas an offense. '1.
. . "We agree that childbirth is a normal function ofwomanhood, and that proof that appellant for a considerationagreed to and did attend JuliaValaez at childbirthdoes not support the allegation of the complaintand information that she treated or offered to treat JuliaValdez for a disease, disorder,deformity or injury or effect a cure thereof.
"Not only has the Legislature failed to includewithin the definition of 'practicingmedicine' the branch of medical sciencewhich has to do with care ofwomen during pregnancyand parturition called 'obstetrics'but has in a number of statutes recognizedpractical obstetrics or mid-wifery as outside the realm of themedical practice act."Konorable Dan Brazil, page 

### 3 (&f-1278)

It is our opinion, therefore, that a fatherwho acts as a mid-wife on the delivery of his own child and who does not publicly profess to be a physician or surgeon is not in violation of the medical practice act.

A husband who acts as a mid-wife in the delivery of his own child and who receivesno compensation therefor and who does not publicly profess to be a physician or surgeonand who does not diagnose, treat or offer to treat any disease, disorder or injury is not violating the medical practice act of this State. Very trulyyours, WILL WILSON Attorney General of Texas

MFS:sh:wb APPROVED: OPINIONCOMITTEE

w.v. Geppert, Chairman Elmer McVey Robert Lewis Virgil Pulliam Linward Shivers Marvin F. Sentell - Assistant Attorney General

APPROVED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee