Settlement approved in lawsuit against fertility doc alleged to have used wrong sperm

OTTAWA — An Ontario court has approved a settlement that will see more than $13 million divided between families who allege an Ottawa fertility doctor used his own sperm and that of the wrong donors in performing artificial inseminations.

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

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

The class members include Barwin's former patients who allege they were artificially inseminated with sperm belonging to the wrong donor, in some cases the doctor's own sperm.

They also include the spouses of patients, the children conceived, as well as sperm donors who allege they entrusted Barwin to store their semen or use it for a specific purpose, only to find it was used without their consent to conceive a child.

Court heard the amount paid out to each class member will depend on which category they fall under, as well as a number of other factors, such as whether more people join the legal action.

MacLeod said he believes the settlement is in everyone's best interest, adding that none of the class members objected or requested to opt out.

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

"By contrast, continuation of a legal proceeding with an uncertain outcome would have prolonged and exacerbated the family trauma."

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

"How can the damages suffered by a child who discovers such a situation be measured? After all, had there been a different genetic origin that particular child would not have existed, but the child's entire life has been turned upside down by a discovery which profoundly alters his or her sense of self," he said.

"What is the liability of the defendant to husbands of women who believed their child to be conceived using their own semen or semen from a donor they have selected together? How can the damages be measured for women who were so profoundly betrayed and whose consent in such an intimate procedure was vitiated?"

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

He gave up his medical licence years ago. It was later revoked by the College of Physicians and Surgeons of Ontario after he pleaded no contest to misconduct allegations.

The lawsuit was launched in 2016 by Davina, Daniel and Rebecca Dixon, who discovered through a DNA test that Rebecca was Barwin's biological daughter.

Anyone not yet included in the class action has 120 days to come forward.

The settlement also sets aside money from the fund to operate a DNA database to help link former patients who left semen with Barwin and children who don't know the identity of their biological father.

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

This report by The Canadian Press was first published Nov. 1, 2021.