The Jacobson verdict

March 24, 1992

Cecil B. Jacobson, the former Fairfax County, Va., fertility specialist who was convicted last week on 52 counts of fraud and perjury for using his own sperm to impregnate patients who believed they were receiving sperm from anonymous donors, maintains that he did nothing wrong and that he was only "trying to help these people."

Ironically the government, which claimed Jacobson fathered more than 70 children by women who came to his clinic because they desperately wanted babies, could not prosecute him for those acts because federal law does not forbid doctors from impregnating their patients. Prosecutors had to rely on commonplace mail and wire fraud statutes to obtain convictions, in effect resting their case not on the illegality of what Jacobson did but on the fact that he lied about it.

It is not unusual for prosecutors to pursue such a strategy in cases where either they have insufficient evidence to support more serious charges or in cases, like Jacobson's, which are ill-defined or completely ignored by existing statutes. The legal rules governing artificial insemination, a relatively new technique, simply had not caught up with current medical practice.

Yet Jacobson's conduct clearly violated the fundamental relationship of trust between physician and patient. Jurors in the case were less impressed by prosecution arguments that Jacobson acted out of greed and a desire to shore up a declining practice than by the wrenching testimony of patients about the mental anguish and suffering his duplicity caused.

Jacobson may have thought he was only helping his patients but he had to have known that whatever happiness he may have brought by enabling them to conceive children would turn to gall the moment his scheme was exposed, as it had to be sooner or later. Medical science is changing so rapidly that there probably will always be the kind of legal ambiguities that allow physicians of questionable integrity to delude themselves into believing that they are doing nothing wrong. Ultimately, the only guard against such abuse is common sense and a sternly enforced code of professional ethics. Meanwhile, Congress and state legislatures can do their part by moving quickly to clarify the law spelling out exactly what physicians can and cannot do to help couples who wish to conceive children.

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