PREREQUISITE
DEFINITION
An adoption
facilitator for purposes of this opinion is defined as a business entity or
individual that is not a licensed child placing agency that brings together
adoptive parents and birth parents for a fee. Whether this facilitation is
termed an “advertising service”, “facilitation service”, or “profile service”,
is of no consequence. If the point of the service is to connect the family
with a pregnant woman considering adoption, it is a facilitation service.
CONTROLLING
STATUTES
Tennessee Code
Annotated d
36-1-108 and 36-1-109.
ANALYSIS
It
is clear under these provisions that adoption facilitation for a fee by any
entity other than a licensed child placing agency is illegal in Tennessee. It
is acknowledged that adoption facilitation is legal in some other states.
However if the couple paying for the adoption facilitation service is located in
the State of Tennessee, to make such payment is a crime. It is a Class C Felony
punishable by not less than 3 years nor more than 15 years in prison and a fine
not to exceed $10,000 for an individual or a fine of $250,000 for a corporation
under the laws of the state of Tennessee.
DISCLOSURE
REQUIREMENTS
It is necessary
both in the birth parent surrender and in the Petition for Adoption for the
adoptive parent to disclose all expenses paid by them or on their behalf in
relation to a particular adoption. These disclosures must be made under oath by
the prospective adoptive parents. Tennessee families accepting surrenders or
finalizing adoptions in the state of Tennessee who have paid adoption
facilitators have two unattractive alternatives; either disclosing a previously
committed felony under oath to the court; or commit a second crime of perjury
and perpetrating a fraud on the court. Given that choice, the appropriate
alternative is to disclose the payment to the facilitator but this is risky.
At one time, many
Tennessee Judges were not aware of the criminal issues associated with payment
of facilitators. Some families finalized these adoptions without the
facilitation issue being raised, even though they fully disclosed the payment.
That is no longer to be expected. Families who have paid facilitators must
understand that through the finalization process, their case could be referred
by the adoption court to criminal authorities for investigation.
Finalizing the
adoption in another state when that is available avoids the disclosure
requirements but it does not eliminate the crime.
CONCLUSION
Do not retain facilitators.
If you have already retained a facilitator but you have not received custody of
a child, you should be able to set aside your contract because it is illegal and
therefore void. Because payment is the key to the illegality, under no
circumstances should you send a facilitator more money than you have already
sent.
POST SCRIPT
To console those
who feel that they are missing an important method of locating a child to adopt,
be aware that the quality and results of facilitation services vary
dramatically. There are many hidden costs associated with following up on the
various leads provided that often result in costs much higher than just the
facilitation fee. Finally, many families have been emotionally battered by the
fast paced nature of the facilitator’s approach. That approach often includes
referring a number of risky and poorly investigated potential situations to the
family before one finally works out. There are many other effective and less
expensive approaches available that do not present the possibility in
incarceration.
Reference: Tennessee Code
Sections: TCA
d 36-1-108 &
TCA d
36-1-109
Home ● Tennessee Adoptive Parent Information ● Information for Attorneys and Agencies ● Summary of Tennessee Law
