SLEEP DOES NOT COME EASILY for Daniella and Otakar Kirchner these days. Each night before retiring, they pile stuffed bears and dogs onto that part of their bed reserved for the son they yearn to see. It has been more than three years since Daniella temporarily broke off with Otakar and gave up their newborn for adoption. The pair reconciled two months later—and Otakar has been battling to get his son back ever since. "It is a sickening life," says Otakar, 38, a Chicago restaurant manager. "Everything reminds you of him. Even the children on TV remind you that your son is not here."

Twenty-five miles away, in a suburban Chicago neighborhood, a dimpled 3-year-old in a toddler-size football jersey appears at the top of the stairs in his family's modest home. "Dad," the boy whom the courts call Baby Richard to protect his identity, announces, "I play football at Notre Dame now." His adoptive father, 37, a firefighter, smiles encouragement, despite the possibility that his adopted son may be turned over to his birth parents.

That could happen as early as October if the Illinois supreme court's June 16 decision is upheld. In a case requiring the wisdom of Solomon, the court decided that the rights of Baby Richard's biological father must be considered before the interests of the child or his adoptive parents, John and Jane Doe. (The couple have not released their names in order to protect both their adopted son and their 7-year-old biological son.) Earlier in the legal tangle, two lower courts had found Kirchner, the birth father, unfit because he showed "no reasonable degree of interest" in his son during his first month of life. But Kirchner, insisting he knew nothing of Baby Richard's existence until he was 57 days old, appealed.

In support of Kirchner's position, Illinois supreme court justice James Heiple wrote that if the best interest of the child took precedence, then "anyone with superior income, intelligence, education, etc., might challenge and deprive the parents of their right to their own children." The court overturned the adoption but allowed the child to remain with the Does until this fall, when the U.S. Supreme Court decides whether to hear the case. Either way, says Kirchner, "I will never let go of it. Never." As for the Does, Jane insists, "We have undying faith. God has not failed us yet."

Perhaps it is the memory of last summer's custody battle over Baby Jessica that has sparked the public outcry on Baby Richard's behalf. Sympathy has run largely for the adoptive parents and against the Kirchners, who have had to disconnect their phone to rid themselves of crank callers. Moreover, Chicago Tribune columnist Bob Greene has written enough strong pro-Doe sentiments that the Illinois supreme court cited him in its ruling, calling his columns "acts of journalistic terrorism." Even Illinois governor Jim Edgar, up for reelection in November, has jumped on the Doe-wagon. He was a chief proponent of a bill pushed through the state legislature in July that bolsters the adoptive parents' standings in similar custody suits. The governor's intervention does not please Kirchner. "I want to ask him where he was three years ago," he says. "What does he know about the baby? Or about us?"

The Kirchners are both natives of Czechoslovakia, but their lives have all the twists and turns of a Dickensian novel. A violinist, Otakar took a job with a symphony in Spain at 28 and never returned home. In 1986 he moved to Chicago, where his father—who had fled from Communist-controlled Czechoslovakia when Otakar was 11—was living. Three years later, Otakar met Daniella, then 21, at a local bar. She had just arrived in the U.S. with her uncle, and Otakar got her a job waitressing at Kenessey's, an upscale restaurant that he managed. Soon they were in love, and he had split up with his live-in Czech girlfriend. "It was like my brains were sizzling," Otakar says of Daniella. "We were crazy about each other," she adds.

In November 1989, they began living together, and the following July, Daniella learned she was pregnant. But that January, just as they planned to marry, Otakar was called back to Czechoslovakia to care for the grandmother who had raised him and was dying from the effects of Alzheimer's disease. One of Otakar's aunts, whom he claims was bitter over a money dispute, telephoned Daniella from Czechoslovakia and told her that Otakar had returned to marry his old girlfriend. Daniella was crushed. "I felt betrayed," she says. The next time Otakar phoned from Czechoslovakia, Daniella abruptly hung up and let her answering machine deal with his many calls after that.

Daniella, by then a cosmetology student, says she was soon persuaded by her teacher to give up the as-yet-unborn baby for adoption. "Everyone was telling me it was the best for the child," she recalls. "I really did not want to be selfish. 'If this is the best,' I thought, 'I am going to do that.' " A friend of the teacher even found the baby a family—the Does, who took him home when he was 4 days old.

Meanwhile, Otakar had returned to Chicago, expecting to find a furious Daniella. Instead he found an empty apartment. (With no money, friends or support from her uncle, she had moved into a women's shelter.) Then, says Otakar, on March 20, four days after his son's birth, friends—told by Daniella that the baby had died—broke the news. "The roof fell on my head," he says. "My life broke."

Daniella was devastated, too, by what she herself had wrought. Her eyes mist as she recalls her last moment with her baby. "He was looking at me [as if to say] 'Why are you doing this?' And I said, 'I am doing this for you.' That was the last time I saw him."

It was Mother's Day, 1991—Baby Richard's 57th day of life—when Daniella approached Kirchner, seeking a reconciliation. Now she admitted that their child was alive, well—and adopted. Kirchner contacted an attorney to halt the adoption proceedings.

By then, the Does were tending their new arrival. The couple had met in the seventh grade in a suburban Chicago school but didn't start dating until they were in their early 20s. Married in 1979, Jane, a paralegal, and John had a son, now 7. They say they had not sought to adopt but were "bowled over" by that first call about the child. "We went to bed thinking, 'This is wonderful,' " says Jane.

Never did they expect that legal briefs and litigation would dominate their lives for the next three years. The Does vehemently dispute Kirchner's claim that he believed his child was dead and insist that he initially wanted nothing to do with Baby Richard, even wavering after contacting his lawyer. By the time Otakar filed a petition to declare paternity on Sept. 23, 1992, two weeks after he married Daniella, the Does say they had bonded with the infant, who, today, remains blissfully unaware of the custody battle. "Everything he has needed to sustain his life has come from us," says Jane softly. "We are his parents."

No, says Otakar, he and Daniella are. "Why are they acting like they are cheated?" he asks, "I feel cheated. I didn't steal nothing from them. From the first day I showed up, I just wanted to have my son. I just wanted to have my family."

MARJORIE ROSEN
BRYAN ALEXANDER in Chicago

  • Contributors:
  • Bryan Alexander.