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Thursday, July 16, 2009

Writing and the Law, Part II: Untenable Plots

In a prior post entitled "Romance Writing and Law, Part I," I wrote about the inherent dangers of romance authors creating plots involving legal concepts without the consultation of an attorney. Today, I'd like to give a few examples of often used, but legally problematic, plots. Before doing this, I want you to understand I appreciate that authors have used these plots, editors have bought these stories, and publishers have printed and sold these books for years (and will continue to do so). However, this doesn't make the plots legally viable.

Here they are (in the order in which I've seen them most often appear):

1. The "Hero and Heroine Must Marry to Inherit under a Will" Plot. The heroine and hero must marry under the terms of a will in order to inherit. Under the laws of most states in the U.S., a condition is unenforceable if it encourages disruption of a family relationship, discourages formation or resumption of such a relationship, or seriously interferes with a beneficiary's freedom to obtain a divorce or exercise his or her freedom to marry. So, it is highly unlikely that a court would enforce a will provision requiring the heroine to marry the hero, and vice versa, in order to receive a bequest or devise under a will.

2. The "Hero Wrests Control of the Family-Owned Company from the Heroine" Plot. The hero wrests control of an American privately-held (often a family-owned) company from the heroine by getting one or more stockholders to sell his or her shares. But privately-held companies and all its stockholders are often parties to a stockholders' agreement that restricts the stockholders from transferring their stock. The purpose of a stockholders' agreement is to prevent an outsider from becoming a stockholder.

3. The "Hero Pulls Off a Secret Take-Over of a Publicly-Traded Company" Plot. The hero takes over a publicly-traded company by swooping in and buying up a controlling interest on the New York Stock Exchange, thereby wresting control from the heroine. I don't know where to start with this one. Suffice it to say that take-overs (usually by one company of another) are strictly regulated, highly publicized, and often bitterly opposed affairs.

4. The "Hero's Sperm is a Misfired Bullet" Plot. The hero stores his sperm at a sperm bank, and the facility mistakenly uses it to impregnate the heroine. I saw this last in a story set in New York in which the hero was an unmarried Arab concerned about his line of succession. The most common method for a man to provide his sperm at a sperm bank is masturbation, but masturbation is forbidden under Islam. Should I bother to go on and point out that a wealthy and powerful Arab would most likely not be a bachelor, but have a wife (if not four wives) ready, willing, and eager to give him a child? So, even if a plot set in the United States doesn't violate applicable federal and state laws, it might well run afoul of the laws or culture of the land of the hero or heroine, making it less likely for that hero or heroine to engage in the behavior required by the plot.

5. The "Heroine Acts as a Gestational Surrogate Carrier" Plot. The unmarried and motherless heroine carries a baby for another couple, sometimes with the hero being the genetic and biological father, and the genetic mother having been killed off in one way or another. Some states, such as Texas, have a gestational surrogacy statute. Among a few of the specific requirements, the gestational surrogate carrier must have already had a child to qualify as a carrier, the couple and surrogate must enter into a court-approved agreement prior to the creation of the child at issue, and upon the birth of that child, the genetic mother is automatically listed as the mother on the birth certificate.

Most romance authors can't resist creating plots involving the corporate, trusts & estates, and family law areas, perhaps because they provide a juicy way of forcing a hero and heroine together either as partners in business or marriage. I do think there are ways of using these areas of law to create viable and exciting plots, but authors shouldn't attempt to do so without consultation with an attorney. Yes, romance writing is about creating a fantasy, but it shouldn't be about committing the fantastical.

© 2009 Madeline Smyth. All Rights Reserved.

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