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Explanation of Indiana Code 35-46-1-22- Indiana's Anti-facilitator Law

The referenced code provision makes it illegal for any person or agency other than an adoption agency in Indiana or an attorney licensed to practice law in Indiana to provide “adoption services” in Indiana. This law has no impact whatsoever on inter-country adoptions. Prior to the recent amendment to I.C. § 35-46-1-22, it was illegal for facilitators – non-licensed agencies and individuals – to provide “adoption services” in Indiana. In 2010, the law was expanded to make it illegal for adoption agencies and attorneys, not licensed in Indiana, to provide “adoption services” in Indiana.

The reason for the change in the law was that attorneys and agencies who are not licensed in Indiana are not as familiar with Indiana laws and procedures as Indiana practitioners, resulting in the possibility of misinformation being provided to expectant and prospective adoptive parents. The providing of misinformation puts expectant parents, prospective adoptive parents, and adoptive children at unnecessary risk of an adoption disruption. As anyone familiar with adoption knows, a disruption of an adoption for any reason is a tragedy, but even more intolerable if it could have been avoided had the appropriate laws and procedures been followed.

However, I.C. § 35-46-1-32, as amended, does not prevent an adoption agency or adoption attorney outside of Indiana from providing “adoption services” to an Indiana resident if those services take place outside of Indiana. As an example, if an adoption agency in Utah matches prospective adoptive parents in Indiana with a birth mother living in Utah, and the adoption takes place in Utah, there is no violation of Indiana Code § 32­46-1-22, because no “adoption services” were provided in Indiana. However, if a Utah agency matches an Indiana family with an Indiana birth mother, the Utah agency has violated the law.

The Indiana law does not attempt to govern activity which takes place outside of the State of Indiana, only those activities that take place inside the state. By way of analogy, the drinking age in Indiana is 21. It is illegal for a person less than 21 years of age to buy and consume alcohol in Indiana. However, if a 19 year old Indiana resident travels to a state where the legal drinking age is 18 and consumes alcohol in that state, the 19 year old Indiana resident does not violate Indiana law.

Furthermore, irrespective of Indiana Code § 35-46-1-22, an attorney from a state outside of Indiana may not practice law in Indiana unless they become licensed in Indiana. Similarly, a licensed child-placing agency in another state can not place for adoption children in the State of Indiana unless they become licensed in Indiana. I.C. § 35-46-1-22 provides an additional disincentive, in the form of criminal penalties, for attorneys or agencies who are not licensed in Indiana from providing “adoption services” in Indiana.

In order to better understand I.C. § 35-46-1-22, allow me also address a few other fact situations:

  1. An Indiana couple contracts with a facilitator in Georgia to find them a baby. The facilitator finds a baby in Wyoming. The Indiana couple contacts an attorney in Wyoming to take the consent to adoption. The Wyoming attorney assists the family in complying with the requirements of the Interstate Compact on the Placement of Children, and the family returns to Indiana, where they file and finalize the adoption. This does not violate I.C. § 35-46-1-22 because neither the facilitator nor the Wyoming attorney provided any “adoption services” in Indiana.
  2. A Wisconsin couple contracts with a facilitator in Indiana to find an expectant mother. The facilitator finds an expectant mother in Indiana and arranges for an Indiana attorney to handle the adoption and comply with the ICPC. This violates I.C. § 35-46-1-22 because “adoption services” may only be provided by an adoption agency or attorney licensed in Indiana.
  3. A California adoption agency finds an expectant mother in Indiana and matches her with a family from California. The California agency contacts an Indiana attorney to handle the arrangements for the adoption and to comply with the ICPC. This violates I.C. § 35-46-1-22. “Matching adoptive parents with biological parents” is one of the enumerated “adoption services”, which may only be performed by an adoption agency or attorney licensed in Indiana.
  4. A priest in Tennessee learns of an expectant mother in Indiana and matches her with a member of his congregation in Tennessee, without compensation of any kind. This does not violate I.C. § 35-46-1-22 because the law only prohibits providing “adoption services” for “compensation, an item of value, or reimbursement, either directly or indirectly”.
  5. An Indiana couple contracts with a Michigan agency to assist with the adoption of child born in Korea. The Michigan agency identifies a child in Korea for the family, the family travels from Indiana to Korea and brings the child directly to Indiana. This does not violate I.C. § 35-46-1-22 because the Michigan agency did not provide any adoption services in Indiana. The services were provided in Korea and Michigan. However, it would be a violation if the Michigan agency performed a homestudy of the Indiana family or if a Michigan attorney appeared in Indiana to represent the adoptive parents in court.
  6. An Arkansas adoption agency matches an expectant mother from Arkansas with a family from Indiana. The Arkansas agency takes the consent to adoption or terminates parental rights in accordance with Arkansas law, places the child with the Indiana family in Arkansas, complies with the ICPC, and the adoption is finalized in Indiana by an Indiana attorney. This would not violate I.C. § 35-46-1-22 because, again, no “adoption services” were performed in Indiana by the Arkansas agency.
  7. An Illinois adoption attorney comes to Indiana and holds an informational/recruitment meeting for prospective adoptive parents. This also does not violate I.C. § 35-46-1-22 because the law, specifically. excludes: “General education and training on adoption issues” from the definition of “adoption services.”
  8. A Mississippi adoption agency places a paid advertisement in an Indiana telephone book. This would violate I.C. § 31-46-1-21, which prohibits a paid advertisement or listing from being published in an Indiana telephone directory. I.C. § 31-46-1-21 only applies to “paid” advertisements and listings.

Finally, please understand that I.C. § 31-46-1-22 imposes criminal penalties on adoption providers not expectant or prospective adoptive parents.

I hope that this clarifies Indiana Code § 35-46-1-22. If there are any additional questions, please do not hesitate to contact me.

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