Urgent need for fertility rules highlighted by allegations doctor used his own sperm
The allegations that an Ottawa fertility doctor used his own sperm to inseminate two women at the Broadview Fertility Clinic underscore an urgent need for regulations in the industry, according to former patients and lawyers.
A potential class-action lawsuit was filed against Norman Barwin in the Ontario Superior Court on Tuesday. It has yet to be certified by a judge, an important step for the lawsuit to proceed. The allegations against Barwin have not been proven in court.
Currently, people who work and use fertility services describe a hodgepodge of rules across the country. Accreditation is mostly voluntary, and some provinces, such as Quebec and B.C., inspect and licence clinics, while others, including Ontario, are still catching up.
Meanwhile, Health Canada has only just put out a notice this fall about an intention to develop regulations under the Assisted Human Reproduction Act to, among other things, reduce “the risks to human health and safety arising from the use of donor sperm and ova for the purpose of assisted human reproduction.”
Right now, no government agency in Ontario — federal nor provincial — is inspecting clinics.
Need for regulations urgent
“Certainly, this case shows us that we do have a need for regulation and better regulation,” said lawyer Erin Lepine, who works for Nelligan O’Brien Payne, the law firm that launched the suit against Barwin.
Lepine said confidence in the system is a keystone for the people who use it.
“The damage that it can cause to these people when they find out something as shocking as the fact that your father is not your father and in fact it’s the doctor who was trusted,” Lepine said.
Kat Palmer, one of the children named in the lawsuit, said one of her motivations for joining it was to ensure future families are not subjected to the same shock endured by her family.
“You put a lot of trust in procedures like this and to find out it happened a different way is very upsetting,” she said adding she was shocked to find there were so few regulations.
Palmer said she discovered how things did go wrong when she began searching for her donor father and potential half-siblings in 2015.
After finding a partial DNA match to Barwin’s cousin through an online ancestry site, Palmer said she approached Barwin, who agreed to a DNA test.
She said he confirmed through an email that there was a positive DNA match.
“He apologized,” she said, adding he wrote he had no idea how this could have happened, and was sorry for any pain he may have caused.
Palmer finds half-sister
Last month, DNA tests concluded that Palmer and another woman conceived at the Broadview Fertility Clinic with Barwin’s help were half-sisters, according to the statement of claim filed on Tuesday.
“I knew I wasn’t alone,” Palmer said. “I’m hoping that rules and regulations are put in place so things like this can’t happen.”
‘I’m hoping that those that maybe my potential half siblings out there come forward and get tested.’ – Kat Palmer
Davina and Daniel Dixon approached Barwin for help to conceive in 1989. Rebecca Dixon was born the following summer in a rare case of a brown-eyed child from blue-eyed parents.
Blood tests later confirmed that Rebecca had type O-positive blood, proving it was not possible Daniel, with type AB blood, was her father, according to the statement of claim.
Palmer and Dixon’s lawyers said dozens of Barwin’s former patients have called since they went public with their story to find out more about the case.
“I’m hoping that those that maybe my potential half siblings out there come forward and get tested,” Palmer said.
Barwin’s clinic never inspected
Barwin admitted in 2013 that he used the wrong sperm in at least four cases between 1986 and 2007 before a disciplinary committee of the Ontario College of Physicians and Surgeons.
His licence to practice medicine was suspended for two months. He resigned from the Order of Canada in 2014.
Two of the four cases had already been the subject of lawsuits that made headlines as early as 2010.
They had been “resolved” in 2012, meaning the plaintiffs came to an agreement that included confidentiality around the terms.
The same year, Barwin volunteered to stop the practice of artificial insemination and intrauterine insemination.
The college said Barwin’s office was never inspected because it did not have the authority.
“Until we have the authority over all fertility services and a new inspections framework is developed, the college can investigate the care or conduct of individual doctors, as is evident from the discipline hearing related to Dr. Barwin,” Kathryn Clarke, the college’s senior communications coordinator, told CBC News in an email.
Those regulations are now being drafted by the college, after being tasked by the provincial government in the wake of its legislation offering limited coverage of in vitro fertilization treatments.
‘Everyone’s worst nightmare’
“It’s everyone’s worst nightmare to hear that something like this could happen,” said Mark Evans, executive director of the Canadian Fertility and Andrology Society, representing the interests of about 150 clinics across the country.
But he added that this case is unusual.
“This is an anomaly. It’s not something that happens,” said Evans, who added most clinics adhere to voluntary standards through a not-for-profit agency called Accreditation Canada, which also accredits hospitals.
He welcomed more formal regulations by the federal and provincial governments.