A few thoughts on the Barwin settlement

Aug 03, 2021

The case of the Canadian fertility doctor who mixed up sperm and sometimes used his own was certified as a class action last week. Details of a proposed settlement were released. Here are some initial thoughts.

In November 2016, news broke that a renowned Canadian fertility doctor, Norman Barwin, had used his own sperm to inseminate patients in his clinic without their knowledge. Two young women, Kat Palmer and Rebecca Dixon, went public with the fact that Barwin was their biological father and that their mothers had been inseminated with the doctor's sperm.

There had been previous Barwin sperm mixups. In one case, a woman discovered that her husband's sperm had not been used to inseminate her sister, who was acting as a surrogate; no one knew whose sperm was used. In a few other instances, sperm from the wrong donor was used.

But whereas the earlier cases settled quietly, Dixon and her parents launched a class action suit.

Last week, that class action was certified by the Ontario Superior Court of Justice. A proposed settlement of $13,375,000 was made public. It may be the first of its kind in the world.

There are now 226 members of the class action, and more may come forward. Seventeen people are confirmed to be the biological offspring of Barwin. Eighty-three other people do not yet know who their biological fathers are — but they do know they are not who they were intended to be. Male patients who stored sperm with Barwin, prior to cancer treatment or as part of fertility treatment, do not know if biological children were born using their sperm without their consent.

The settlement sets aside $75,000 for a private DNA database to help patients and offspring discover their genetic connections to one another.

The proposed settlement identifies three "harm categories." In families where the male partner was supposed to be the biological father but was not, mothers and partners will get up to $50,000 each, and offspring up to $40,000. In families where a specified sperm donor was supposed to be the biological father but was not, mothers, partners and offspring are eligible for $30,000 each, unless the biological father was Barwin, in which case the parents get $40,000 each. Up to $35,000 will be given to men whose semen was stored with Barwin, and used to conceive children without their consent.

There is so much to say about this case, but for now I want to make four observations about this proposed settlement.

Barwin denies any wrongdoing.

"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."

"The Plaintiffs and the Defendant intend to and hereby do finally resolve the Action and all the claims that were or could have been asserted in the Action, subject to the approval of the Court as hereinafter provided, without any admission of liability or wrongdoing whatsoever by the Defendant."

"The Court has not taken any position as to the truth or merits of the claims or defences of the parties."

There's something profoundly disappointing about this.

But anyone familiar with Barwin's history knew that an apology was unlikely. It seemed that any time you talked about Barwin admitting wrongdoing, you eventually wound up talking about one thing: marathons.

If it weren't for the marathons...

Because, as many of us know, before Norman Barwin was known for mixing up sperm, he was known as a marathon cheat.

In 2000, he competed in the Boston Marathon. But when the sensor in his shoe failed to register at seven out of 10 checkpoints, questions were raised. At first, he suggested that the chip might have failed. Later, he claimed that he'd hitched a ride with a friend into Boston, then joined some buddies towards the end of the race.

As it happens, marathoners are serious about cheating. (Fertility regulators could learn a thing or two.) According to an excellent investigative piece in Ultramarathon World, race officials reviewed video evidence and didn't see Barwin running. They investigated the people who crossed the finish line both before and after Barwin, and none of them knew who he was. There were no buddies, they concluded. He was given an opportunity to explain, but he did not. He was disqualified and permanently banned.

Tellingly, that didn't deter him from trying the same ruse again the following year, this time in Ottawa, at the National Capital Marathon. He placed first in the 60-65 age category. Later, when challenged, he explained that he'd had trouble with a hernia, so had dropped out, but joined a "training partner" towards the end. He claimed he had notified race officials about this. But no such training partner or race official was ever found.

Local Ottawa runners were already on to him, the article says. One had notified race officials in advance of Boston and then Ottawa to keep an eye on the guy who seemed to win so many races without being seen running in them, and without being known to any local runners.

When the Ottawa Citizen published a story about the cheating, the newspaper was apparently inundated with letters of support for the local hero. "Cheating in a marathon was not worth reporting," one reader wrote.

I disagree. I think it tells us a lot about the man at the centre of this scandal.

Barwin pays nothing.

The $13,375,000 payout will come not from Barwin, but from the Canadian Medical Protective Association (CMPA). The CMPA is mutual protection society that acts in defence of doctors accused of wrongdoing and makes payouts to people harmed by them.

Doctors pay into the CMPA, to be sure, but the provinces typically reimburse the lion's share of those fees.

So it looks to me like the people of Ontario are largely footing the bill for this settlement.

Barwin has no duty to offspring.

Just days before the proposed settlement was announced, the Court of Appeal for Ontario made an important ruling in an unrelated case. That case involved a woman who'd been prescribed a fertility drug and who subsequently gave birth to triplets at just 26 weeks. All three children have disabilities. The question was whether the prescribing doctor had any duty of care to the triplets.

The court confirmed she did not.

Had an injury taken place in the womb as a consequence of a doctor's actions, things might have been different. But because the events in question took place before conception, there is no duty.

This judgement suggests that, had the Barwin case gone to trial, Barwin might also have been found not responsible to the offspring brought into the world as a result of his sperm errors.

I'm no lawyer — obviously — but let me just say I find this odd. Barwin’s entire purpose as a fertility doctor was to cause conception. To then release him (or any fertility doctor) from the consequences of that action seems perverse.

Luckily, in the Barwin settlement, the allocation of the payout was left to the lawyers to work out. And they recognized harms to the offspring.

There is still no law against this.

As far as I know, there's still no law anywhere in Canada prohibiting a doctor from using the wrong sperm — including the doctor's own — in assisted reproduction.

In contrast, several US states have moved to rectify that. California, Indiana, Texas, Florida, Colorado and Arizona all now have laws against fertility fraud. Similar bills are in the works in Iowa, New York, Oregon, Pennsylvania and Washington.

In Canada, if it's happening as you read this, it's still not illegal.

HeyReprotech

A few thoughts on the Barwin settlement

The case of the Canadian fertility doctor who mixed up sperm and sometimes used his own was certified as a class action last week. Details of a proposed settlement were released. Here are some initial thoughts.

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