$13.375 Million Proposed Settlement in Norman Barwin Class Action

 

DNA Database Set Up for Former Patients

Update. July 28th, 2021

In a case without precedent in Canadian law and indeed the world, a groundbreaking settlement was announced today that will bring compensation to people affected by Dr. Norman Barwin, the Ottawa fertility doctor who used the wrong semen in numerous artificial inseminations he performed and in some cases apparently used his own.

The total amount of the settlement, $13.375 million, was revealed after a virtual hearing in which a judge certified the class action against Dr. Norman Barwin.

The class action was launched in November 2016 by Davina Dixon, Daniel Dixon and Rebecca Dixon.  In 1989, Davina and Daniel went to Barwin for assistance in conceiving a child.  He performed artificial insemination and Rebecca was born on June 1, 1990.  Up until 2016, all three believed Rebecca was the biological child of Davina and Daniel.  However, DNA testing disclosed that in fact Barwin is Rebecca’s biological father.

Since 2016, many other former patients have come forward and the class action has helped them pursue answers about the true biological parentage of their children. But the picture remains incomplete:

  • Some patients have been able to confirm the intended paternity of their children
  • However, 100 children do not possess the DNA of the intended biological father and of these:
    • 17 are the biological offspring of Dr. Barwin, and
    • 83 do not know the identity of their biological father

The settlement of the class action provides compensation to those patients and their children where the DNA of the children is not as was intended by the parents at the time of the artificial insemination performed by  Barwin.  It also provides compensation to former patients who had entrusted their semen with Barwin either for safe-keeping or for a specific intended use, but which was used by Barwin in the insemination of another patient, and which resulted in offspring.

To assist other former Barwin patients seeking answers, part of the settlement will go towards the operation of a DNA database to be coordinated by Orchid Pro DNA Laboratories.  It will permit former patients who entrusted semen with Dr. Barwin and those children who do not know the identity of their biological father is to determine if there are any matches.  This process will permit the comparison of DNA between patients and offspring in a controlled and private database with agreements in place in the event a match is found.  The lawyers representing the plaintiffs encourage any former patients who wish to participate in the DNA database to get in touch with them as soon as possible to start that process.

While the court has certified the class action for the purposes of this settlement, it still has not yet approved the settlement itself.  The court will be reviewing the settlement in a hearing scheduled for November 1, 2021 and if approved the claims period will run for a further 120 days, during which time any further plaintiffs can come forward.

Details of the Settlement Agreement, the Plan of Allocation, the Notices to potential claimants and all relevant forms are below and are available at the website dedicated to the administration of the class action: www.barwinclassaction.ca.

Update. December 20, 2019

We have issued a Fresh as Amended Statement of Claim. The Fresh as Amended Statement of Claim contains updated class definitions that are more broadly defined than in our original Statement of Claim. The Fresh as Amended Statement of Claim also expressly includes class members who were treated by Dr. Barwin at the Ottawa Hospital before he opened the Broadview Fertility Clinic.

If you are a former patient of Dr. Barwin or their children and you have a question about the class action or the Fresh as Amended Statement of Claim, please contact Nelligan O’Brien Payne directly c/o Robyn Beaulne at 613- 231-8214 or robyn.beaulne@nelliganlaw.ca.

Click here to access the Fresh as Amended Statement of Claim.

Update. October 22, 2018

The alleged actions of fertility doctor Norman Barwin have affected countless individuals and families across Canada. Alison Motluk from the HeyReprotech Newsletter has published a list of the various kinds of discrepancies we have seen arising out of Dr. Barwin’s fertility practice. HeyReprotech is a news service dedicated to reporting and analyzing developments in reproductive technology.

Read the full article here.

Update. April 5, 2018

Class Action against Dr. Barwin. Media Release.

Media Release in PDF (71Kb).

Download Now >

Since we issued the Statement of Claim in November 2016, we have been in contact with over 150 individuals who have been adversely affected by Dr. Barwin’s fertility practice going back as far as 1978.

We are now aware of 11 individuals whose parents went to Dr. Barwin for assistance with fertility and DNA investigation discloses that he is their biological father. In some cases, the intention was for Dr. Barwin to use the sperm of the male of the couple.  In others, a specific anonymous sperm donor had been selected.  Instead, it turns out that Dr. Barwin himself is the biological father.

In addition to the individuals conceived with Dr. Barwin’s biological material, we have also become aware of:

  • 16 individuals who were to be conceived using their father’s sperm and who are not a biological match to their father. In these cases, the biological father is unknown.
  • 35 individuals who were to be conceived using anonymous donor sperm and may not be a biological match with intended donor. In these cases, the biological father is also unknown.

At the time of preparing the original claim, we were only aware of problems with Dr. Barwin’s fertility practice while he operated out of the Broadview Fertility Clinic.  But from the claimants we have seen, it is now clear that these problems also occurred while Dr. Barwin practised out of the Fertility Clinic at the Ottawa General Hospital and going back as far as the 1970s.

We have also learned that there are individuals who stored sperm with Dr. Barwin which was later transferred to other fertility clinics.  Subsequent investigation disclosed that the sperm had been contaminated with another unidentified individual’s sperm. The parents were no longer able to use the sperm.

We have also been contacted by numerous men who are concerned about what happened to the sperm they stored with Dr. Barwin. They are concerned that their material may have been used to conceive a child that they do not know about.

We are in the process of amending the Statement of Claim to capture these new developments.  At the same time, we are finalizing the materials for the certification of the class action. Once the action is certified as a class action, the next step will be to establish the process for the claims to be adjudicated and resolved. We expect the action to be certified in the coming months and the framework for resolution to follow after that.

As part of the resolution process, we are working on solutions for everyone in the class action. We are working on a framework to allow those individuals who were not conceived with the intended sperm but also not Dr. Barwin’s sperm to ascertain who their biological fathers are and any half-siblings. For those who were conceived with Dr. Barwin’s material, we are working on a method for preserving their ability to collect health information from Dr. Barwin now and in the future.

Update. December 12, 2017

We are continuing to prepare materials for the certification of the class action. Once the action is certified as a class action, the next step will be establishing the process for the claims to be adjudicated and resolved. We expect the action to be certified in the first half of 2018 and the process for dealing with the claims to be in place shortly thereafter.

Since the class action was issued last year, we continue to be contacted by many people who were former patients of Dr. Barwin and their children. We are not in a position just yet to provide the full details but from the discussions we have had so far, the following is becoming apparent to us:

  • Problems arising from Dr. Barwin’s practice may have occurred at all points in time throughout his practice in Ontario, including the time period in which he worked at the Ottawa Hospital in the 1970s and 1980s and continuing through the time period of 1984 to 2014 when he operated his own practice at the Broadview Fertility Clinic. Therefore, it is important to note that anyone at any point in time who saw Dr. Barwin for assistance in conceiving a child in Ontario at either the Ottawa Hospital or at the Broadview Fertility Clinic may be affected.
  • It appears that Dr. Barwin made insemination errors with both patient sperm and donor sperm.
  • Individuals or couples who received Dr. Barwin’s assistance in conceiving a child with anonymous donor sperm may have conceived a child with the wrong sperm i.e. sperm that was not from their chosen or selected donor;
  • Couples who received Dr. Barwin’s assistance for the purposes of conceiving a child together, where the father’s sperm was to be used and only the father’s sperm was to be used, may have conceived a child with another individual’s sperm.
  • It appears that sperm that was stored with Dr. Barwin for preservation and safe-keeping may also be contaminated. Anyone who stored sperm with Dr. Barwin, but conceived a child at another clinic or with another doctor, may also be affected. Further, anyone who still had sperm stored with Dr. Barwin when he retired, and who transferred that sperm to another clinic in hopes of using it one day but have not yet conceived a child, may now be in possession of contaminated sperm.
  • It appears that Dr. Barwin’s own DNA material was involved in the artificial insemination process in more than the two occasions detailed in the Statement of Claim (i.e. in Rebecca Dixon’s and Kathryn Palmer’s cases). If you are concerned that Dr. Barwin’s DNA material may have been involved in your artificial insemination process, please contact us so that we can arrange for DNA testing.

We encourage anyone who has not yet reached out to us but who has concerns about whether they may have been impacted in any way by Dr. Barwin’s  practice to contact us as soon as possible.

Our claim alleges Dr. Barwin negligently inseminated his patients with the wrong sperm. Specifically, our claim alleges that his patients conceived and gave birth to children whose DNA does not match their intended sperm donors.

We are also alleging that in some cases, Dr. Barwin used his own sperm in the artificial insemination procedure and that he is the biological father of an unknown number of children who were conceived at his clinic.

The class action includes three Plaintiff classes:

  1. Patients of Dr. Barwin who were inseminated with the wrong biological material i.e. with sperm other than the sperm they consented to being used by Dr. Barwin for the purposes of artificial insemination.
  2. Patients of Dr. Barwin who:
    • were not inseminated by way of artificial insemination, but who became a parent to a child conceived with the assistance of Dr. Barwin and whose DNA does not match the DNA of the child’s sperm donor; and/or
    • provided their sperm to Dr. Barwin to be used for artificial insemination pursuant to their instructions and it was not used for that purpose; and/or
    • provided their sperm to Dr. Barwin for safe-keeping and preservation and it was not so used.
  3. Persons who were conceived at the Broadview Fertility Clinic with the wrong biological material i.e. with biological material other than the material selected or chosen by their parents for the purposes of artificial insemination. This includes persons who were conceived using Dr. Barwin’s own sperm.

This site is intended to provide plaintiffs involved in the lawsuit with the most up-to-date facts, documents, news and information about the class action against Dr. Barwin.

Former patients of Dr. Barwin and/or their children who wish more information may contact Nelligan O’Brien Payne directly c/o Robyn Beaulne at 613- 231-8214 or robyn.beaulne@nelliganlaw.ca.

 

Related media coverage:

Class-action lawsuit against disgraced fertility doctor grows – | Ottawa – CBC News | June 15, 2020

Disgraced fertility doctor’s clinic broke federal rules as far back as 1999, inspection reports reveal | Ottawa – CBC Investigated | January 6th, 2020

Canadian fertility doctor accused of using own sperm to impregnate patients |  Xinhua | April 8, 2018
Ottawa fertility doctor implanted own sperm in clients 11 times, lawsuit alleges | Ottawa – CBC News | April 5, 2018
Lawsuit against fertility doctor accused of using own sperm expands to 150 people ‘adversely affected’ | Ottawa Citizen | April 6, 2018
Dozens sue Canadian fertility doctor for ‘using wrong sperm’ | BBC News | April 6, 2018
Canadian doctor accused of using own sperm in IVF treatment | The Guardian | April 6, 2018
Canadian doctor accused of secretly using his sperm to impregnate patients | Fox News | November 4, 2016
Allegations Ottawa fertility doctor used his own sperm underscore need for regulation | Ottawa – CBC News
Former Ottawa fertility doctor impregnated 2 women with his own sperm, lawsuit claims – Ottawa – CBC News
Fertility doctor accused of using own sperm to impregnate patients | Telegraph
Lawsuit claims fertility doctor used his own DNA to inseminate patients | The Globe and Mail
Infertile couples came to this ‘baby god’ for help. Now, they’re accusing him of betrayal | Washington Post
Ottawa family sues fertility doctor for use of wrong sperm – his own – The Current with Anna Maria Tremonti | CBC Radio
Lawsuit: Canadian doctor impregnated patients with own sperm | Houston Chronicle
Doctor accused of secretly using his sperm to impregnate patients | New York Post
Lawsuit claims Ottawa doctor used own sperm to impregnate fertility patients | Yahoo News
Lawsuit: Canadian doctor impregnated patients with own sperm – seattlepi.com
Lawsuit claims Ottawa doctor used own sperm to impregnate fertility patients | CP24.com
Ottawa fertility doctor accused of impregnating patients with his own sperm | CTV New
Un médecin d’Ottawa poursuivi pour avoir inséminé ses patientes avec son sperme| TVA Nouvelles
Lawsuit claims Ottawa doctor used own sperm to impregnate fertility patients | 680 NEWS
Lawsuit: Canadian Doctor Impregnated Patients With Own Sperm | ABC News
A fertility doctor is being accused of impregnating women with his sperm | Her.ie
Proposed class action against former Ottawa fertility doctor grows | CTV News
Class action against Ottawa fertility doctor grows | CTV News
This fertility doctor allegedly used his own sperm to impregnate many patients | CTV News
Fertility doctor is father to 11 of clients’ kids, lawsuit says | CNN
Barwin’s babies: The remarkable story of a disgraced Ottawa fertility doctor and those who say they are his children | Ottawa Citizen