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Settlement reached against Canadian fertility doctor who used his own sperm… but no criminal charges

20 September 2021
By Sara Cohen
Lawyer at Fertility Law Canada and adjunct professor of law at Osgoode Hall Law School, Toronto, Ontario.
Appeared in BioNews 1113

Many readers will have heard about the case of Dr Norman Barwin from Ontario, Canada, who, from the early 1970s until the 2010s, allegedly inseminated hundreds of his patients with his own sperm or the wrong sperm (ie, sperm other than the sperm that the patient intended be used). 

At least 100 people have been found to have been conceived using the wrong sperm while being treated by Dr Barwin, at least 17 of whom were conceived through the use of his own sperm. Dr Barwin's medical license was revoked in 2019 (see BioNews 1004), previously having been suspended in 2013 for the same conduct (see BioNews 691), and again in 2014.

In July 2021, an Ontario court certified a class action suit against Dr Barwin for battery, breach of trust, breach of contract, negligence and other torts. The class includes some 226 plaintiffs, including the aforementioned people conceived by Dr Barwin using the wrong sperm, as well as patients who were wrongly inseminated with the sperm, and patients whose sperm was wrongly used to conceive someone else's child. The same month, the plaintiffs and Dr Barwin came to a proposed settlement that has since been approved by the court. The settlement is considered to be the first of its kind, not only in Canada, but internationally (although unfortunately, Dr Barwin's actions in using the wrong sperm are not unique).

The reason that the proposed Barwin settlement is so significant is twofold: It is a large class action settlement (more than 13 million Canadian dollars), and some of the settlement funds would be directed to create a private DNA database (see BioNews 1106) for the claimants to find genetic matches among them, and people who left their sperm in the care of Dr Barwin are able to test their DNA against any of the participating claimants.  

The settlement states that '[t]he primary purpose of the DNA Database will be to provide the Children Class with the opportunity to identify their biological fathers, obtain medical health history, and locate half-siblings.' Ostensibly, the DNA Database answers at least some of the claimants' questions about their genetic origin, in a manner that would have been expensive and difficult, if not impossible, without the database.

The part of the settlement, though, that really stands out for me is where, in the agreed statement of facts, it states:'(a) The Plaintiffs commenced this Action in Ontario against the Defendant alleging, among other things, that errors made in the course of artificial inseminations... [and] (b) The Defendant has denied and continues to deny all of the Plaintiffs' claims in this Action, has denied any liability of any kind whatsoever, and states that he would have actively and diligently pursued affirmative and other defences had this Action not been settled.'

By calling the misuse of the sperm a mere error, and by denying all of the Plaintiffs' claims, Dr Barwin has failed to take any responsibility for his actions. One is left questioning why criminal charges, such as fraud, or assault, were not laid against Dr Barwin. Perhaps a conviction on criminal charges would have brought some peace to Dr Barwin's victims.

The number of times a doctor has seemingly knowingly used the wrong sperm to inseminate a patient, including using his own sperm, is nothing short of shocking, and one wonders how many other times this may have happened that have simply not yet been discovered.  

These doctors typically get away with this abhorrent behaviour without any criminal liability, and without significant financial liability either. The Barwin case makes some important inroads by recognising the significant damage caused by Dr Barwin's actions, but this recognition is only made from a financial perspective. Without criminal charges being laid, this is the best that Dr Barwin's victims can hope for.

2 August 2021 - by Georgina Al-Badri 
A lawsuit over a Canadian fertility doctor, who used his own sperm to impregnate patients has reached a settlement of £13 million Canadian dollars....
1 July 2019 - by Sarah Gregory 
A Canadian fertility specialist, Dr Norman Barwin, has lost his medical licence for using the wrong sperm, including his own, to inseminate a number of IVF patients...
16 April 2018 - by Laura O'Donovan 
A Canadian fertility doctor is being sued by 11 former patients after DNA tests revealed he used his own semen in their treatment...
7 November 2016 - by Ryan Ross 
A Canadian fertility doctor is facing a class action lawsuit by the families of some of his former patients, who allege that he used his own sperm in donor-conception procedures without their knowledge or consent...
20 September 2010 - by Ben Jones 
A Canadian doctor is being sued by two of his patients who discovered their children were not genetically related to the believed donors, reports the Canadian newspaper The Globe and Mail...
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