                         AURTIN.        TEXAS   78711




The Honorable  Chet Brooks                            Opinion   No.   H- 565
Chairman,  Senate Committee        on
  Human Resources                                     Re: Whether the Department
Senate Chamber                                        of Health may include
Austin, Texas  78711                                  adopted and illegitimate
                                                      children on lists of children
                                                      to be included in the immuniza-
                                                      tion 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 Immuniza-
tion 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 dis-
        closing 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 Depart-
ment 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 publica-
tion 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     Pro-
        gram.    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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