             E                 Y    GENERAL




                       March 13, 1962

Honorable Dan Brazil          Opinion NO. ~~-1278
County Attorney
Angelina County               Re:   Whether it is a violation of
Lufkin, Texas                       law for a'father to act as
                                    midwife on the delivery of
                                    his own child without being
Dear Mr. Brazil:                    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 li-
cense.
         The only question that could arise from the conduct out-
lined 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." Arti-
cle 741 provides as follows:
         #'Anyperson shall be regarded as practicing medi-
     cine 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, di-
     rectly or indirectly, money or other compensation;
     provided, however that the provisions of this Arti-
     cle shall be consErued 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 pub-
licly professed to be a physician or surgeon. Therefore, if he
is to be regarded as practicing medicine it must be under the pro-
visions of Section 2 of Article 741.
         One of the essential elements of Section 2 is that such
person receive, directly or indirectly, compensation for a diag-
nosis, or 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 Legis-
    lature 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 func-
    tion of womanhood , and that proof that appel-
    lant for a consideration agreed to and did at-
    tend Julia Valaez at childbirth does not support
    the allegation of the complaint and information
    that she treated or offered to treat Julia Val-
    dez for a disease, disorder, deformity or injury
    or effect a cure thereof.
        "Not only has the Legislature failed to in-
    clude within the definition of 'practicing medi-
    cine' the branch of medical science which has to
    do with care of women during pregnancy and par-
    turition 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 viola-
tion of the medical practice act.



          A husband who acts as a mid-wife in the de-
      livery 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



                                    Marvin F. Sentell    -
MFS:sh:wb                           Assistant Attorney General
APPROVED:
OPINION COMITTEE
w . v . Geppert, Chairman
Elmer McVey
Robert Lewis
Virgil Pulliam
Linward Shivers
APPROVED FOR THE ATTORNEY GENERAL
BY:   Houghton Brownlee
