Legal Review of Adoption Advertising
by Guest Blogger Harvey Schweitzer
Adoption advertising refers to publishing an interest in adopting or the availability of a specific child for adoption. Prospective adoptive families advertise their desire to adopt in newspapers, on bumper stickers, on the Internet, and many other places. If you are thinking about an “advertising strategy,” below are a few things to consider.
The laws in the state where you live determine what you can or cannot do in your state, but not what you can or cannot do in another state. If you live in a state that prohibits advertising you can advertise in any state that allows it; however, even if your state allows advertising you will not be able to advertise in a state that prohibits it.
The laws on advertising differ from state to state. Some states may have no laws at all regulating advertising. Some states prohibit advertising by individuals seeking to adopt. Other states, however, allow ads by adopters or agencies while prohibiting ads by lawyers or those acting as unlicensed facilitators or intermediaries. Some states do not allow ads placed by out of state agencies.
The majority of states allow advertising by adopters as long as the content is not a violation of state law – for example, by offering to make a prohibited payment, such as living expenses in a state that does not allow those to be paid. Some states allow adopters to place an ad that informs those responding to contact someone other than the adopter, such as a lawyer.
States can impose other restrictions. For example, some states require the adopter/advertiser to have a formal relationship with an adoption agency in that state. Usually this means that the local agency certifies that the adopters have a valid current home study. Newspapers and those who assist in placing ads can also impose requirements such as a letter from the adopter’s lawyer (proving you are getting legal advice). Sometimes the “lawyer letter” must state something specific, for example, a statement that the adopters have been advised regarding the relevant laws concerning advertising.
The Internet is not nearly as regulated as other media, but there are states that purport to restrict adoption advertising on the web. The authority of a state to do so and the effect of such regulation are debatable. For example, a state can prohibit adoption ads in newspapers originating in that state, but a state cannot prevent the sale or distribution of a newspaper with such ads that originates in another state. Therefore, it could be argued that a state could attempt to prohibit adoption ads from being placed on a web site by an entity located in that state that hosts or controls the site.
In any event, being able to advertise on the Internet is an opportunity and a risk. It is an opportunity because it allows a lot of adopter information to flow rapidly and cheaply to the target population. The risk is that widespread distribution may increase the chance of people attempting to defraud adopters. People claiming to be making an adoption plan may have no intention of doing so or unscrupulous people pretending to be bona fide professional may do nothing or very little for their fees. It is important that adopters work closely with their adoption professional to identify and manage these types of risks.
Some people also plan their advertising based in part on the adoption laws of the target state. For instance, some states allow non-residents to adopt and some do not. Some states provide for court enforced “post-adoption” contact agreements and some do not. Do you want to adopt in a state that allows such agreements? Are you prepared to pay birth mother living expenses or do you prefer to adopt in states that do not allow them? Planning ahead is surely a good idea, but keep in mind that no one can predict who will respond to an ad. It is not uncommon for a response to come from someone living in a state other than the target state. In the case of newspaper advertisements, for example, this may happen because a newspaper places its ads “on line” or someone mails an ad to a friend or relative. Therefore, regardless of where you advertise you must be ready to take advantage of opportunities as they happen, no matter what you anticipated.
Advertising works. Just be sure that you pay attention to any restrictions and prohibitions and be ready to move quickly when the time comes.
Harvey Schweitzer practices law in Maryland and the District of Columbia. His practice focuses on children’s issues such as adoption, foster care, and child abuse, as well as providing representation to social workers and child-serving agencies in areas such as “best practices,” risk management, and licensing. Mr. Schweitzer is a Fellow of the American Academy of Adoption Attorneys. You can e-mail him at email@example.com or visit his website at www.schweitzerlaw.net.