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Today, Regional Senior Justice Calum MacLeod of the Ontario Superior Court approved the ground-breaking settlement reached earlier this year in the class action involving Ottawa fertility doctor, Norman Barwin.

The settlement will bring compensation to all those affected by virtue of Barwin using the wrong semen in numerous artificial inseminations he performed and in some cases apparently using his own.

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. “We felt Dr. Barwin’s former patients needed to know about the discrepancies in his practice. We also needed to provide them with a method to determine if the genetic makeup of their children was what they had intended. And if it was not, then to provide them with remedies. This class action has provided the prefect vehicle to achieve all of those goals,” said Peter Cronyn of Nelligan Law, who represented the plaintiffs along with colleagues Jessica Fullerton and Frances Shapiro Munn.

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 be part of that process.

The approval of the settlement starts the claims period and it will run for a further 120 days, during which time all potential claimants can submit claims forms to the Claims Administrator, RicePoint, to determine if they are eligible for compensation. 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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