Settlement approved in lawsuit against Ottawa fertility doctor alleged to have used incorrect sperm

Editor’s note: The original version of this story contained an incorrect byline and could not be credited to the Canadian press.

A court in Ontario has approved a settlement that will see more than $ 13 million split between families claiming that a fertility doctor from Ottawa used his own sperm and that of the wrong donors to perform artificial insemination.

Supreme Court Justice Calum MacLeod signed the settlement in the class action lawsuit against Dr. Norman Barwin in a virtual hearing today.

The settlement was proposed in July, when the case was certified as a class action, and the court heard that 18 more people have come since then, a total of 244.

The class members include Barwin’s former patients who claim to have been artificially inseminated with semen belonging to the wrong donor, in some cases the doctor’s own semen.

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They also include spouses of patients, the children conceived, and sperm donors who claim to have entrusted Barwin with storing their sperm or using it for a specific purpose, only to find that it was used without their consent to conceive a child.

The court heard that the amount paid to each class member will depend on the category they fall into, as well as a number of other factors, such as whether several people participate in the trial.

MacLeod said he believes the settlement is in everyone’s best interest, adding that none of the class members protested or asked to resign.

“Closure is a benefit for families who have endured the shock, trauma and sense of betrayal by discovering that their genetic heritage or their children’s heritage has been misrepresented and altered,” he said.

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“On the other hand, a continuation of a lawsuit with an uncertain outcome would have prolonged and exacerbated the family trauma.”

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The judge called the settlement “substantial” and noted the difficulty of assessing what constitutes reasonable compensation in such a unique case given the absence of other similar cases.

“How can one measure the harm to a child who discovers such a situation? After all, if there had been a different genetic origin, that child would not have existed, but the whole child’s life has been turned upside down by a discovery that profoundly changes his or her self-esteem, ”he said.

“What is the defendant’s responsibility to men for women who thought their child was conceived using their own semen or semen from a donor they selected together? How can the harm be measured for women who were so deeply betrayed, and if consent in such an intimate procedure was deficient? ”

Barwin has accepted the settlement, but continues to deny the allegations and any liability, according to court documents.

He relinquished his medical license several years ago. It was later revoked by the College of Physicians and Surgeons of Ontario after he did not invoke any competition for abuse allegations.

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The trial was initiated in 2016 by Davina, Daniel and Rebecca Dixon, who through a DNA test discovered that Rebecca was Barwin’s biological daughter.

Anyone who is not yet included in the class action lawsuit has 120 days to sign up.

The settlement also allocates money from the fund to operate a DNA database to help connect former patients who left sperm with Barwin and children who do not know the identity of their biological father.

Fees for the plaintiffs’ legal team will also be deducted from the fund pending the court’s approval. MacLeod said he would review the details of the proposed attorneys’ fees by Tuesday.

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