Medical Ethics -- When Doctor Is Donor - Without Telling The Patient

Va. - The witnesses are using assumed names when they take the stand, and any reference that would identify them or their children will be wiped out of the trial's records.

Under conditions befitting the trial of an organized-crime boss, they began testifying this week against a portly doctor who specialized for three decades in helping women have babies.

What they fear is public embarrassment, because Dr. Cecil Jacobson has admitted secretly using his own sperm in artificial-insemination procedures that might have produced a number of the witnesses' children.

Jacobson, who ran a now-closed fertility clinic in the Washington, D.C., suburb of Vienna, Va., is accused of lying to his patients about the source of the sperm and, in other instances, telling women they were pregnant when they were not. But the ethical and medical issues implicit in his case are the same ones that 80,000 to 100,000 couples and single women ponder each year before undergoing artificial insemination from anonymous donors.

In fact, the largely self-regulated practice of reproductive therapy is becoming so complex that the federal Food and Drug Administration is developing its first rules to supervise the field.

Prosecutors say Jacobson, who has seven children of his own, could have become the biological father of as many as 75 other children between 1977 and 1988.

One Orthodox Jewish couple wanted a Jewish sperm donor. They got sperm from Jacobson, a Mormon, according to Robert Hall, a lawyer representing the couple. In other cases, Hall said, at least two offspring have serious birth defects.

If Jacobson did what is alleged, he violated ethical standards:

-- Bypassing standard health and genetic screening procedures.

-- Failing to provide semen from a donor whose physical and genetic traits match those sought by the prospective parents.

-- Donating semen after he was past age 50, which at the time was the maximum recommended age for donors. More recent standards recommend 40 and some sperm banks say 35, before the onset of cell deterioration that can cause birth defects.

-- Inseminating enough women in the same locale to create a statistical possibility that two of his unknowing offspring could grow up, meet, marry and have defective children as a result.

-- Violating doctor-patient trust.

"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 well-known 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?"


But Jacobson's lawyer, James Tate, argues that "Dr. Jacobson doesn't have a fraudulent bone in his body. His whole idea was, `Let's get 'em pregnant . . .' "

Tate said his client used his own sperm on occasion, but only when donors failed to show up.

Jacobson, 55, is a former George Washington University geneticist believed to be the first physician in the United States to perform amniocentesis, a prenatal procedure that detects Down's syndrome and other abnormalities in a developing fetus.

Jacobson said that he believed his own fresh semen was more effective than a bank's frozen sperm. And, he said, because he had been faithful to his wife, he was confident he would not transmit any dangerous infectious diseases to his patients.

The idea that a doctor would use his own sperm in insemination cases has seemed so unlikely to most fertility-treatment professionals that the subject never has been addressed by the ethics committee of their organization, the American Fertility Society.

It is "such an obvious violation of trust that you wouldn't even think of putting it in the guidelines," said Dr. Edwin Peterson of Ann Arbor, Mich., who helped write the society's rules. "It's so bizarre . . . and unprofessional."

"A woman going into this procedure is bargaining for sperm," said Michelle Oberman, an expert in medical law at Chicago's Loyola University. "That's all she wants. She doesn't want the man that goes with it."

Diane Clapp, a counselor for Resolve, a national infertile-family support group, said that, especially in small towns, the most modern practices might not always be pursued.

Any woman seeking fertility help is especially vulnerable, said Clapp, because "the physician for many women has a magical quality, almost like a guru."

When the doctor is discovered to be the donor, she said, "It must be a very shattering experience - one, because they're not anonymous anymore and, two, because it involves a physician with some implicit trust."


In a little-noticed 1988 study by the federal Office of Technology Assessment (OTA), 2 percent of 1,300 physicians polled said they sometimes used their own sperm to artificially inseminate.

Ethicist Caplan and others, including Rep. Ron Wyden, D-Ore., head of a House subcommittee investigating fertility clinics for more than four years, said they were amazed that 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."

Gary Ellis, who conducted the OTA survey, predicted 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."

-- Material from The Associated Press, Los Angeles Times and Newsday is used in this report. ---------------------------------------------------------------


The remarkable nature of the Jacobson case was evident this week in the courtroom, where several witnesses were disguised in wigs, and large signs with witnesses' pseudonyms were taped to the stand to prevent attorneys from calling the witnesses by their real names. Selected testimony:

Mary Green and her husband were looking at a photo of their daughter at 3 days old. "We both said `Whoa! Who does she look like?' We both had the same feeling that she looked a lot like Dr. Jacobson."

Mary Johnson said Jacobson had "stated that he had a perfect match for my husband."

"Does it really matter to you who the donor was?" asked Jacobson's attorney, James Tate.

"Yes, it does," said Johnson, adding later, "He (Jacobson) does not resemble my husband one iota."

John Ruby, who is 6 feet 9 inches tall, said Jacobson told him he had found a sperm donor who matched Ruby's physical build.

His wife had a child, and Ruby said he never was given any impression that Jacobson was the donor.

"There's no way I'd have him be the father," he said.

Associated Press, Washington Post