E Y GENERAL 

March 13, 1962 

Honorable Dan Brazil Opinion NO. ~~-1278 

County Attorney 

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 child without being 

a registered midwife. 

We have studied your letter requesting an opinion of 

this office on the question of whether it is a violation of law 

for a father to act as a midwife on the delivery of his own child 

without being a registered midwife. 

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 conduct might constitute the 

illegal practice of medicine. Articles 739 through 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 "practicing medicine." Article 741 provides as follows: 

#'Any person shall be regarded as practicing medicine within 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 physical deformity 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 

physical deformity 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 this Act. 
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 shall be regarded as practicing medicine. 

We assume from your letter that the husband involved has not publicly professed to be a physician or surgeon. Therefore, if he 

is to be regarded as practicing medicine it must 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, compensation for 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 Court held that a woman 

who had received compensation for acting as a midwife was not 

"practicing medicine', as that term is defined in Article 741, 

Vernon's Penal Code. The Court said in part as follows: 

"It would appear, however, that the Legislature of Texas has 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 registering a 

certificate evidencing the right to so practice 

is made punishable as an offense. 

'1. . . 

"We agree that childbirth is a normal function of womanhood , and that proof that appellant for a consideration agreed to and did attend Julia Valaez at childbirth does not support 

the allegation of the complaint and information 

that she treated or offered to treat Julia Valdez for a disease, disorder, deformity or injury 

or effect a cure thereof. 

"Not only has the Legislature failed to include within the definition of 'practicing medicine' the branch of medical science which has to 

do with care of women during pregnancy and parturition called 'obstetrics' but has in a number 

of statutes recognized practical obstetrics or 

mid-wifery as outside the realm of the medical 

practice act." 
Konorable Dan Brazil, page 3 (&f-1278) 

It is our opinion, therefore, that a father who 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 receives no 

compensation therefor and who does not publicly 

profess to be a physician or surgeon and 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 truly yours, 

WILL WILSON 

Attorney General of Texas 

MFS:sh:wb 

APPROVED: 

OPINION COMITTEE 

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