Advertising in Adoption, Texas Edition

From my own backyard:

A mother accused of trying to sell her infant son insists she was simply trying to put him up for adoption.

In a jailhouse interview with News 8, Brittany Hill, 26, says she never wanted to make any money off her son.

“Never in my wildest dreams would I sell a child,” she told News 8. “A child is not an animal or a dog on the street.”

She posted the classified ad online several weeks ago on the website PennySaverUSA.com. The ad said she was “in search of an [sic] great family for my son... I can no longer care for him the way he needs to be.”

“I'm working with an adoption agency so there is an adoption fee they have set up,” the ad continued. “I believe its $6,500.”

Hill said she wanted to alert potential parents that an adoption would likely cost thousands of dollars.

“This is how much you’re going to have to pay for an attorney, living, medical -- all that stuff,” she said. “You can’t just say, ‘Oh, here’s your baby for free!’”

Hill said she stumbled across the website while Googling ways to put a child up for adoption. She decided to offer her child after noticing families posting ads wanting to adopt or take in foster children.

One problem with the mom's defense is that, even if she wasn't going to sell the child, it is against the law in Texas to merely advertise a child for adoption unless you are a licensed adoption agency.  (See Tex. Penal Code 25.09.)  So even if she wasn't selling the child, she committed a crime.

But what about all those people she saw advertising that they wanted to adopt?  Is that a crime, too?  The Penal Code says that it's an offense if a person advertises that they "will . . . obtain a child for adoption." Does that apply to a prospective adoptive parent advertising that they wish to adopt?  The Texas Attorney General, in response to a request for an opinion from the bill's sponsor says it's unclear:

You next ask whether section 25.09, Penal Code, prohibits a prospective adoptive parent
from advertising that he or she wishes to adopt a child. Section 25.09 prohibits a person, other than a licensed child-placing agency, from advertising that the person “will place a child for adoption or will provide or obtain a child for adoption.” The phrase “will. . obtain a child for adoption” could plausibly be read to refer to a person who seeks to adopt a child. Parts of the statute’s legislative history indicate that such a reading was intended. During a hearing on House Bill 1091 before the House Committee on Juvenile Justice and Family Issues, a witness asked you, as the bill’s sponsor,whether the provision would prohibit prospective adoptive parents from advertising that they wished to adopt a chi1d.s You stated repeatedly that the provision was intended to do so. You made reference to the committee’s interim report, the impetus for House Bill 1091, which recommended legislation that would ban “baby wanted” advertising.

On the other hand, the phrase ‘will. . obtain a child for adoption” could also be read to refer to the act of acquiring a child for someone else to adopt. Other parts of the legislative history support this construction. The Juvenile Justice Committee’s report on House Bill 1091 states: “The bill amends Penal Code Chapter 25, stating that a person commits an offense by advertising in the public media that they will place a child in adoption, or provide a child for adoption.“ And, in explaining House Bill 1091 on the floor of the House of Representatives, you stated that the bill “amends chapter 25 of the Penal Code creating an offense to advertise in the public media that a "child will be placed for adoption or provide a child for adoption.” Thus at least two explanations of the bill to the legislature omitted any reference to application of the prohibition to prospective adoptive parents. While the bill’s sponsor may have contemplated a different construction, when interpreting a statute a court must seek to effectuate the “collective” intent of the legislators who enacted it.” In doing so a court normally focuses on the literal text of the statute, which in this case we think is susceptible to more than one understanding. In light of the ambiguity in both the wording of the statute and its legislative history, we cannot predict how a court would rule on this question. Moreover, we believe this ambiguity makes the statute susceptible to a challenge that it is unconstitutionally vague.

So, a placing birth parent can't advertise without violating the criminal law, but a prospective adoptive parent can probably get away with it. Why is that, I wonder? Obviously the concern about advertising the placement of a child is that it might allow baby selling.  But don't "baby wanted" ads risk baby buying?

States take a variety of positions on advertising in adoption -- you can find a quick primer here.  I'll write more about other states some other time. . . .