Fertility Doctor’s Case Raises Ethical Concerns : Health: Physician’s secret use of his own sperm violates his patients’ privacy, experts say.

Trusting and desperate women came to the doctor, and he promised to help them become pregnant, using semen from anonymous donors.

For many, he was as good as his word. What he had failed to tell his patients, however, was that the donor was far from anonymous: The doctor had used his own semen.

Dr. Cecil B. Jacobson, 55, once a highly regarded geneticist who later opened his own fertility clinic, is believed to have fathered as many as 75 children in the Washington area during the late 1970s and early 1980s. He is now being tried on fraud and perjury charges in a sensational case that is unfolding in a suburban Virginia courtroom.

He has been accused of lying to his patients about the source of the sperm and, in other instances, telling women that they were pregnant when they were not.

Jacobson has acknowledged that he used his own semen, saying that he did not believe he had done anything wrong. In comments made earlier, Jacobson said he believed his own fresh semen was more effective than a sperm bank’s frozen semen. And, he said, because he had been faithful to his wife, he was confident that he would not transmit any dangerous infectious diseases to his patients.

The case has provoked an intense national debate, raising disturbing ethical questions about medical practices and the doctor-patient relationship. It has also initiated calls for tougher regulation of sperm banks and fertility clinics.

Jacobson is a former George Washington University geneticist who later opened his Reproductive Genetics Center. It was while treating women there that the alleged fraud occurred. In addition to being charged with lying to them about the source of the semen, he is also charged with fooling 10 women into thinking that they were pregnant by injecting them with unusually frequent doses of a hormone that he knew would create false positive results in a pregnancy test. Later, it is alleged, he told the women that their fetuses had died and been reabsorbed by their bodies.

In a separate case in 1989, Jacobson was prohibited from practicing clinical medicine in Virginia after the state medical board determined that he had misled women who had paid $5,000 each for fertility treatments.

Both Jacobson and his lawyer refused a recent interview request. The identities of most of the former patients involved in the litigation have been kept secret out of concern for their children.

“I think they should show him to the nearest jail cell and simultaneously drain his bank account to subsidize the education of his offspring,” said Arthur Caplan, a medical ethicist who directs the Center for Biomedical Ethics at the University of Minnesota. “If we’re going to send people to jail for tax fraud and bunko, why shouldn’t we be just as outraged by someone who would lie and scheme in the creation of babies?”

Caplan said he considers Jacobson’s behavior a violation of patients’ rights to privacy and to informed consent, that is, to be fully informed about their treatments.

“It is a threat to confidentiality--both to the couple seeking artificial insemination and to any children who result,” he said. “The parents are told one thing about who the donors are, and it turns out that someone else has donated. That’s just lying. It contributes to distrust for all doctor-patient encounters because people begin to wonder: ‘Can I trust my doctor?’ ”

Jacobson has been revered in some quarters for his actions in helping women become pregnant, and several former patients are expected to testify in his behalf. One Washington-area gynecologist who knows Jacobson--and who said he considers him “a weird fellow”--nevertheless said he does not see what all the fuss is about. The only real danger was the possibility that some of these children--all with the same biological father--would grow up, meet each other and unknowingly marry, he said.

“What he did, obviously, was unethical, but I can understand why he did it,” said the physician, who requested anonymity. “What’s so different between that and what most doctors were doing at the time--which is to go to a medical student and say: ‘How’d you like to make $35?’ He knew his own sperm was all right, and he did get many women pregnant. He has produced pregnancies in women who are very happy. I don’t say he’s right. It’s distasteful. But he has some points.”

Caplan and others, including Rep. Ron Wyden (D-Ore.), head of a key House subcommittee that has been investigating fertility clinics for more than four years, said they were amazed anyone could justify such behavior.

“I’m floored by that kind of notion,” Wyden said. “I would find it very distressing if large numbers of people in the medical profession didn’t find this repugnant to their ethical standards. The essence of health care is being straight with your patients.”

Nevertheless, there is some evidence that this attitude of tacit acceptance--while not widespread--is not isolated to this one case. The results of a 1987 federally sponsored survey--virtually ignored at the time--showed that as many as 2% of the fertility doctors polled had done exactly the same thing as Jacobson.

The survey, conducted by the federal Office of Technology Assessment, polled 1,300 physicians who practiced artificial insemination, although not all of the respondents answered every question. But some of them, when asked their sources of semen, replied: “My own.”

Gary Ellis--who headed the survey and who is also director of health promotion and disease prevention for the National Academy of Sciences’ Institute of Medicine--predicted that the Jacobson case would prompt the federal government or the states to consider tighter regulation of the fertility industry.

“It’s only loosely regulated now,” mostly on the part of the states, Ellis said. “The government is reluctant to regulate the practice of medicine very heavily. Physicians traditionally have had broad domain over how they practice, but a physician using his own sperm certainly seems to be a breach of medical ethics.”

Wyden said he believes the case will “finally make it possible to get basic consumer protection standards in place” for the industry.

“You’ve got a potentially combustible mix here,” he said. “You’ve got vulnerable people, willing to spend large sums of money, and new technology--all operating without minimum patient protection standards. Even though many people will say this (what Jacobson did) is not common, it’s still going to wake the country . . . up.”

Wyden has introduced legislation that would require in-vitro fertilization clinics to report their success rates to potential patients. He intends to add a provision that would make guidelines on donor insemination drafted by the American Fertility Society admissible “as standards of care” in malpractice suits.

The guidelines, however, do not address the practice of physicians using their own sperm. They recommend only that a donor be younger than 50 and in good health.