Many gay men and couples opt to pursue an independent adoption for the freedom it provides. Rather than leave the work to find a birth family to an agency, independent adoptions allow adoptive families to be active participants in the search process. Often, this involves conducting extensive outreach or "advertising" — placing notices in newspapers, on radio or online — to help adoptive families connect with birth families.
Conducting outreach in this way can be a useful tool for gay men and couples interested in pursuing an independent adoption. In particular, it can provide gay men with an opportunity upfront about their sexual orientation, and connect with birth families that will embrace the idea of gay dads.
However, the extent to which adoptive parents are allowed to advertise varies widely by state. See below for more information on where your state falls:
States That Forbid Advertising in Adoption Proceedings
In 16 states — Alabama, California, Delaware, Florida, Georgia, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Montana, Nebraska, Nevada, North Dakota, Texas, and Utah — state law expressly prohibits advertising in adoption proceedings. Statutes in these states generally prohibit adoptive parents from advertising on any "public medium," including radio. The prohibition typically extends to adoption "intermediaries," who are professionals that help connect birth families with prospective adoptive parents. (Check out our glossary of adoption terms every gay man should know.)
Needless to say, pursuing an independent adoption in states that prohibit advertising can make the process much more difficult. Often, prospective adoptive parents pursuing independent adoptions in these states must already be connected to the birth family in some manner, which precludes the need for advertising.
States That Allow Advertising in Adoption Proceedings
At least 16 states — Colorado, Connecticut, Illinois, Kansas*, Mississippi, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Virginia, Washington, and Wisconsin – have laws on the books that specifically allow advertising in adoption proceedings. It's important to read each statute closely, however, as some detail certain requirements that must be met in order to legally advertise.
Colorado and Connecticut, for instance, require all adoption proceedings to occur via a state certified agency. Adoption professionals in agencies are allowed to advertise on your behalf, but you or an independent intermediary cannot do so on your own.
Other states, including Kansas and Mississippi, don't necessarily prohibit an intermediary from advertising on behalf of adoptive parents, but they do require those adoption professionals to state whether or not they are licensed, and by what agency. Some jurisdictions, such as North Carolina and Oklahoma, require adoptive parents to first complete a valid home study before engaging in any advertising.
States Without Regulations on Advertising in Adoption Proceedings
The last 18 states — Alaska, Arizona, Arkansas, Hawaii, Idaho, Iowa, Maryland, Michigan, Minnesota, Missouri, New Jersey, New York, Pennsylvania, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming — and the District of Columbia have no laws on the books with respect to adverting in adoption proceedings. The lack of a law expressly prohibiting outreach has generally been interpreted to mean that adoptive parents, and any intermediary working on their behalf, are free to advertise as they see fit.
Still, adoption laws are constantly changing, and there is nothing stopping these states from enacting advertising restrictions at some point in the future. So regardless of the state you live in, be sure to check with your lawyer regarding the laws in your state prior to engaging in any advertising or outreach. And be sure you ask your adoption attorney (or agency) these 5 questions.
*The information included above is educational, and is not meant as a substitute for legal advice.*