Adoption, egg donor and surrogacy advertisements

"New Mexico couple would like to adopt baby. Will provide caring, stable, enriched learning environment for your child."

"Women ages 22-32 sought as egg donors for infertile couples. Extremely rewarding both emotionally and financially."

"Unwanted pregnancy can become your gift of love. Many wonderful couples for you to choose from. Financial assistance available for pregnancy-related expenses."

Pick up a stack of college student newspapers from across the country and chances are, you will see advertisements similar to those above. Couples seeking to adopt presumably view young people, particularly college students, as fertile ground for unwanted pregnancies and college newspapers as ideal targets for placing ads for adoption. And college student newspapers, many of which depend heavily on advertisements for funds,1 are usually eager to generate more advertising revenue.

But can student publications and other media run advertisements for adoption, surrogacy, and egg donation?

As with many legal issues, the answer to this is not always clear. Fourteen states -- Alabama, California, Delaware, Florida, Georgia, Idaho, Kansas, Kentucky, Massachusetts, Nevada, North Carolina, Ohio, Oregon and Washington -- regulate some ads relating to adoption.

However, it is unclear from the language of most of these statutes whether their restrictions apply to the media, and there are few published court decisions interpreting the laws. Further, if states enforced the laws against the media, it is questionable whether such enforcement would be constitutional.

What the Statutes Say

Statutes regulating adoption advertisements spring from states' concerns about baby-selling.

These concerns have led a few states to ban private adoptions, i.e., adoptions that take place without the involvement of state-licensed agencies. 2

Most states allow independent adoptions but regulate them to prevent profit-making from the placements. 3

Statutes restricting advertising are one way states try to keep a tight reign on independent adoptions and to prevent "black market" adoptions.

A typical statute prohibits any person or organization, other than those licensed by the state to place children for adoption, from advertising in any public medium that the person or organization will adopt children or offer children to be adopted.

In most states, violation of the law is a misdemeanor, punishable by a fine.

However, the penalty in Delaware can include imprisonment for up to five years. And in Georgia, violation of the statute is a felony, punishable by a fine of up to $10,000 or imprisonment for up to ten years, or both.

Surrogacy and Egg and Sperm Donation Ads

Whether these statutes apply to advertisements for surrogacy or egg or sperm donation is not clear from the language of most of the laws.

However, it is likely that the statutes could apply to ads soliciting potential surrogate mothers.

Surrogacy is the process by which a woman agrees to bear a child for a couple and then give the child to the couple after birth. 4

Statutes regulating adoption ads may apply to surrogacy ads because a surrogate mother is usually considered the legal mother of the child until she consents to adoption, thereby giving up her legal rights to the child. 5

Because adoption is part of the surrogacy process, laws banning adoption ads may also apply to surrogacy ads.

An Ohio attorney general opinion supports this reasoning.

The opinion, cited in the notes following Ohio's statute regulating adoption ads, states that it is reasonable to interpret the statute as prohibiting "the solicitation of women to become artificially inseminated with the sperm of men who remain anonymous to them, for the purpose of the women bearing children and surrendering possession of the children and all parental rights to such men and their spouses."

Although no other statutes address the issue of surrogacy ads, the laws could probably be read to apply to surrogacy when adoption is a necessary step in the surrogacy procedure.

Under this rationale, it seems that these regulations do not target egg and sperm donation ads.

When men donate sperm and women donate eggs, they are not legally the parents of the children eventually conceived and they do not have to relinquish parental rights through adoption procedures. 6

Applicability to the Press

Assuming for the moment that some state laws prohibit individuals or organizations from placing or distributing such advertisements, the next question is whether the laws can be used to prohibit or punish media organizations that actually publish the ads. As mentioned earlier, most of the statutes are unclear. A few of the laws do explicitly address the issue of applicability to the media or explicitly allow advertisements.

The language of the remaining statutes seems to fall into two categories. In the first category are laws stating that it is unlawful for non-licensed persons or organizations "to advertise" that they will place or provide children for adoption. In a second category, the statutes prohibit anyone from "causing advertisements to be published."

Each of these categories and their relevance to the media is discussed below.

In Connecticut, a statute explicitly allows birth parents and prospective adoptive parents to advertise for the purposes of private placement adoptions. 7 Therefore, neither the media nor private parties face any liability for publishing such ads.

Laws in four states explicitly address their applicability to the media. Nevada's law is the most favorable to the press. It completely exempts any "periodical, newspaper, radio station or other public medium" from any criminal or civil liability for publishing or broadcasting an advertisement that violates the law. 8

In Washington state, ignorance of the law apparently is a defense. Unlike the Nevada law, Washington's law does not provide a blanket exemption for the press. However, it relieves the press and other advertising media of liability for advertisements they accept "in good faith without knowledge of [their] violation" of the law. 9

Florida's law clearly applies to the media. It requires anyone who publishes or broadcasts an advertisement also to print or broadcast the license number of the agency, attorney or physician placing the ad. [10 Therefore, a newspaper could be liable for publishing illegal ads and for publishing legal ads if it does not also publish the license number of the person or agency placing the ad.

The law in Kentucky is the least favorable to newspapers.

It expressly prohibits newspapers from running advertisements soliciting children for adoption. In addition to prohibiting any "person, corporation, or association" from advertising that they will receive children for adoption, the statute states that "[a] newspaper published in the Commonwealth of Kentucky shall not contain an advertisement which solicits children for adoption or solicits the custody of children." 11

Most of the rest of the statutes regulating adoption advertisements say that it is illegal for non-licensed persons or organizations "to advertise" in any public medium that they will place or provide children for adoption.

The laws in Alabama, Delaware, Florida, Georgia, Kansas, North Carolina, and Oregon fall into this category. It is unclear from the face of these laws whether their prohibitions can be used to punish the media. Looking at the statutes' plain language, as a court evaluating the statutes would, the most reasonable interpretation is that the language is directed only at the people who actually place the advertisements.

For example, Georgia's law provides that it is: unlawful for any person, organization, corporation, hospital, or association of any kind whatsoever . . . to [a]dvertise, whether in a periodical, by television, by radio, or by any other public medium . . . that the person, organization, corporation, hospital, or association will adopt children or will arrange for or cause children to be adopted or placed for adoption. 12

To "advertise" means to describe or present a product or service in some communicative medium to convince the public to buy it. 13 It is the party placing the ad, not the newspaper that publishes it or the radio station that broadcasts it, that is "advertising." On the other hand, if the state of Georgia prosecuted a newspaper for printing an ad for a prospective parent, it could argue that technically, the newspaper is doing the advertising. But even if the newspaper is an "organization" that "advertises," it is not advertising that it will adopt children. Further, while the statute lists a number of different kinds of parties that are not permitted to advertise, it does not specifically state that it applies to the media. Therefore, it seems to make the most sense to assume that the statute does not apply to the media, who simply accept the ads and relay them to the public.

However, it is important to keep in mind that the above analysis is reasoned speculation about what the statutes could mean. Until cases actually come before the courts, no one knows exactly how the courts will interpret them. If it is illegal for the advertiser to place the ad, a newspaper might want to avoid it, even if the newspaper itself could not be prosecuted.

In the second category of statutes that do not expressly state whether they apply to the media, the laws use slightly different language. Instead of stating that it is illegal "to advertise," these statutes prohibit anyone from "causing advertisements to be published." The laws of California, Idaho, and Massachusetts fall into this category.

For example, the law of Idaho provides that "no person or entity ... shall cause to be published for circulation or broadcast on a radio or television station ... an advertisement or notice of a child or children offered or wanted for adoption." 14 This language seems more threatening to the media because it arguably could apply to whoever actually publishes an ad related to adoption. In a literal sense, a newspaper that prints an ad "causes" it to be published. However, a strong argument can be made that these statutes, like the ones in the first category, are really aimed at the parties who are placing the ads and soliciting responses from the ads. Again, no one will know for certain what they mean until the courts interpret them.

While it is frustrating that the meaning of these laws is murky, it is actually a positive sign that the laws have rarely been interpreted by the courts. The reason that there apparently are no reported court decisions interpreting the laws as they apply to the media is probably that no state has ever attempted to enforce an adoption ad prohibition against the media. This may indicate that states do not think the statutes apply to the media. Or it may mean that prosecutors think it would violate the First Amendment to enforce the laws against the media. The dearth of case law involving these laws may also indicate that enforcement of these laws is lax in general, or even that there are few violations of the laws. It seems unlikely that a state would prosecute a newspaper for violating one of these laws, and it seems even more unlikely that a state would win if it did bring a prosecution.

First Amendment Issues

Even if statutes regulating adoption advertisements apply to the media, it is highly questionable whether these statutes would be held constitutional as applied to the news media or anyone else. It does not appear that any of these laws have been challenged on First Amendment grounds, but an opinion by the Kansas attorney general expressed the view that the law in that state violated the First Amendment,15 and it is likely that courts facing the issue would be receptive to a constitutional argument, particularly if a newspaper were involved.

Although commercial speech, which includes most advertising, is entitled to less First Amendment protection than noncommercial speech, it is still constitutionally protected to a large extent. In Central Hudson Gas & Electric Corp. v. Public Service Commission,16 the U.S. Supreme Court developed a four-part test for determining when a state can constitutionally restrict commercial advertising.

The first part of the test is whether the First Amendment protects the speech in question.

Speech concerning unlawful activity or that is misleading is not protected, and the government is free to regulate or prohibit it.

If the speech is protected, the government can regulate it only if it has a substantial interest in regulating it, the regulation directly advances the governmental interest and the regulation reaches no further than necessary to advance the governmental interest.

In analyzing whether adoption ad regulations pass the Central Hudson test, the first question is whether the ads concern legal activity. The answer depends on exactly what the state adoption laws prohibit and what the ads themselves say.

It seems that most ads by parents and prospective parents soliciting or offering children for adoption are legal because adopting children through a private placement procedure is legal in almost every state. Only Colorado, Delaware and Massachusetts require adoptions to be processed through state or state-licensed agencies. 17 But Colorado and Massachusetts allow birth parents to identify particular adopting parents with whom they want the agency to place their child.18 And Delaware allows a court or agency to waive the prohibition against private placements.19 Therefore, even in Colorado, Delaware and Massachusetts it does not appear to be illegal for birth parents and adoptive parents to seek each other out.

However, an ad soliciting a child for adoption may concern illegal activity if it offers to pay the birth mother in exchange for the child, as this could constitute an illegal black-market adoption. Likewise, an offer by a birth mother to exchange her child for money or anything else of value will most likely run afoul of a state's baby-selling prohibition.

Further, many states that permit private placements do not allow unlicensed intermediaries to conduct child-placing activities. 20 Therefore, ads by individuals or organizations not licensed by the state to place children for adoption may concern unlawful activity.

If a statute restricts ads concerning lawful adoption-related activity, the state must next show that it has a substantial interest in regulating the ads. On this point, the state would argue that it has a strong interest in regulating all aspects of adoption.

In order to prevent baby-selling, to protect the best interests of the child, and to protect birth parents and adoptive parents from fraud, the state would argue, it must be allowed to restrict advertising. 21

The state would then contend that advertising laws further its interest in ensuring that adoptions do not become commercial, profit-making activities. The laws arguably further the state interest by preventing people who plan to commit fraud or to illegally buy or sell a baby from communicating with their intended victims or conspirators.

While states may have a good argument that they have a substantial interest in regulating adoption ads that is furthered by the regulations, the statutes are likely to fail the fourth prong of the Central Hudson test.

The laws seem much broader than necessary to advance the states' interest in preventing fraud and baby-selling. For example, the laws could target only ads concerning illegal activity, rather than bona fide ads by birth parents and adoptive parents. Further, states already punish profit-making from placing children for adoption and engaging in child-placing activities without a license.

Fortunately for most student publications, the question of whether to accept adoption-related ads is one that can be decided on editorial rather than legal grounds.

Even where anti-adoption ad statutes are on the books, it appears the risk of running afoul of those laws is generally low. Nevertheless, until the uncertainties in some of these laws are addressed, student media should at least be aware that some risk exists.

Endnotes

  1. A 1987 survey found that more than half of college student newspapers received at least 50 percent of their funding from advertising revenue. Kopenhaver, L., and Spielberger, R., "Student Media Profile," College Media Review (Spring/Summer 1987), pages 13-16. The survey also reported that 93.5 percent of college newspapers reported at least some advertising revenue.
  2. See Joan H. Hollinger et al., Adoption Law & Practice, at section 1.05[3], at 1-70 (1996) (Colorado, Connecticut, Delaware and Massachusetts prohibit private placement of children with adoptive parents to whom the children are not related); John De Witt Gregory, Peter N. Swisher & Sheryl L. Scheible, Understanding Family Law 150 (2d ed. 1993).
  3. Gregory, Swisher & Scheible, supra note 2, at 151.
  4. Id. at 134.
  5. See id. at 135.
  6. See id. at 131.
  7. Conn. Gen. Stat. Ann. section 45a-728d (West Supp. 1996).
  8. Nev. Rev. Stat. section 127.310 (1995).
  9. Wash. Rev. Code Ann. section 26.33.410 (West Supp. 1997).
  10. Fla. Stat. Ann. section 63.212(1)(h) (West Supp. 1997).
  11. Ky. Rev. Stat. Ann. section 199.590(1) (Michie/Bobbs-Merrill 1995).
  12. Ga. Code Ann. section 19-8-24(a)(1) (1991).
  13. Random House College Dictionary 20 (Rev. Ed. 1984).
  14. Idaho Code section 18-1512A(1) (1996 Supp.).
  15. Op. Kan. Att'y Gen. 93-70 (1993).
  16. 447 U.S. 557 (1980).
  17. Hollinger, supra note 2, at section 1.05[3], at 1-70. Connecticut also prohibits private placement but will not be discussed further because it expressly allows adoption advertisements.
  18. Id.
  19. Id.
  20. Id.
  21. See Hollinger, supra note 2, at section 5.06[4], at 5-80 (discussing risk of fraud as a result of newspaper adoption ads).