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Canadian Class Action Lawsuit for Fertility Fraud Against MD Settled for $13.375m

An Ottawa court has approved a settlement in a case involving a physician’s artificial insemination with his own sperm and that of different donors than he represented he was using to his patients. The case is Dixon, et al. v. Barwin, At the time of the settlement hearing in November 2021, the class action against Dr. Norman Barwin included 244 claimants, a number that may increase as new claimants are eligible to apply until the end of February 2022. They included his former female patients, their spouses and children, as well as men who claimed their stored sperm was not used for the purpose they intended and were promised it would be.

The over $13 million negotiated settlement will be divided under a formula designed to a for the different circumstances of those harmed. Settlements awards presently vary from $25,000 to $50,000 depending on both the category of the claimant (mother, “spouse/partner/former patient,” or child) and the category or level of harm caused. Three categories of harm are identified:
  1. where the child is not the biological child of the female patient’s spouse/partner as expected;
  2. where the child is not the biological child of the selected sperm donor or where all children of one couple are not of the same selected sperm donor; and
  3. where a patient’ stored sperm was used without his consent and led to the birth of a child to an unrelated patient.
Couples who conceived more than one child are entitled to an additional $10,000.

There were no objections to the settlement, although in agreeing to it, Dr. Barwin, who both gave up his license and then had it revoked some years ago, continued to deny the allegations against him.

The court, in approving what it described as a “substantial” settlement, explained both the difficulty in determining fair compensation and the appropriateness of doing so: “[c]losure 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.”

The issues of liability and damages for physician misconduct resulting in born, often healthy, children has plagued US courts as well since under most states’ laws cases that traditionally have fallen under the legal theories of “wrongful birth” or “wrongful life” are often denied under the reasoning that damages attempting to measure the worth of a child’s existence are inappropriate. Courts have at times applied other theories, such as wrongful conception, breach of contract, or failure to follow state consumer protection laws, to find liability as well as awarding some, usually limited, measure of damages based on any additional, extraordinary costs of raising a child with medical needs.

The Canadian court acknowledged these concerns but awarded damages to all three groups of complainants, noting:
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.” …“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?[emphasis added]
The settlement includes funds to run a DNA database to help link former patients and offspring.

Daniel Dixon, et al. v. Dr. Norman Barwin, Court File. No.: 16-70454CP, filed in the Ontario Superior Ct. of Justice (Ottawa Registry). https://www.ontariocourts.ca/search-canlii/scj/scj-en.htm 

https://www.thelawyersdaily.ca/articles/31216/class-action-provides-anonymity-effective-legal-vehicle-in-case-against-fertility-doctor-counsel; The Lawyer’s Daily, Canada, by Lexis Nexis (11/10/21).

Japanese woman places baby for adoption and sues “sperm donor” after learning of misrepresentations 

A Japanese married woman has both relinquished a child she gave birth to and is suing the “sperm donor” she used because he misrepresented both his ethnicity and educational level to her.  The woman and her husband were seeking to have a healthy second child after discovering the husband had a heritable medical condition. She did not use artificial insemination, or sperm through a donor bank, but had sex ten times with a man she selected over the internet, believing he was single, had attended a prestigious university, and was of Japanese origin as he represented. While pregnant, she discovered he was actually married, had not attended the prestigious university he claimed he had, and was of Chinese origin.  She has placed the child for adoption and is suing the sperm donor for the equivalent of $2.86m US dollars for emotional distress.  Under US law, the man would not be considered a sperm donor under these facts and circumstances.

Artificial insemination in Japan is reportedly extremely limited, leading to what has been described as a “thriving black market” on social media platforms and websites.  While sperm from overseas is available, within Japan only 12 hospitals perform artificial insemination, and only for married, heterosexual couples. Media reports also suggest a 2005 law which gives donor-conceived offspring the legal right to learn the identify of their donor has contributed to the proliferation of unregulated sperm donation, and that 10,000 such births have occurred. 

The only sperm bank within the country opened in June 2021. The director, Hiroshi Okada, reportedly noted at its opening, that “up to 96%” of the over140 websites advertising sperm donor services in Japan were “unsafe.”

https://www.telegraph.co.uk/world-news/2022/01/13/mother-gives-baby-adoption-dishonest-sperm-donor/?utm_content=telegraph&utm_medium=Social&utm_campaign=Echobox
&utm_source=Twitter#Echobox=1642083927; Telegraph (01/13/22)

https://japaninsider.com/japans-first-sperm-bank-aims-to-reduce-black-market-sperm-trades/; Japan Insider (09/23/21)

Belgium Court Finds Hospital Liable to Family in “Savior Sibling” Embryo Mix-Up


In a case of first impression in that country, a Belgium court has found a Brussels hospital liable and ordered compensation paid to a Spanish couple following the birth of their healthy twins. The couple had undergone IVF and PGT to identify a bone marrow match for their only child, a son who had beta thalassemia. The result was three healthy embryos, but only one was an HLA match. The hospital mistakenly transferred an embryo that was not a match, resulting in twin girls.  The couple’s last embryo was then implanted, which resulted in a fourth child who was an HLA match, and a bone marrow transplant was performed.

The couple sued and the court awarded damages separately to the mother, father and oldest son.  The mother and father were awarded €27,000 (~ $31,000) and €11,000 (~ $12,600), for both “the shock they suffered after learning that the twins were not suitable as donors” and the “anxiety and risks generated by a new pregnancy”. The judge noted the couple had “wanted two or three children within their family project, but under no circumstances four.” The court awarded the child €5,000 ~$5,800) for the delay in his transplant. Finally, the couple were awarded €25,000 (~$29,000), to cover “the impoverishment caused by the presence of a fourth child in the family.”

This is the first reported case from Belgium awarding damages for the births of healthy children.  Somewhat similar to the Canadian court’s rulings in the fertility fraud case discussed above, both courts acknowledged that liability and damages may be appropriate even for the birth of healthy children who are either unplanned, unexpected, or unintendedly genetically unrelated to one or both of their parents. 

US courts continue to struggle with these types of issues of liability and damages in light of long-standing traditions of rejecting penalties that reflect a devaluation of the life of a resulting child. These issues and expanding of theories of liability, will be explored in future column(s).

https://www.theguardian.com/world/2021/nov/24/belgian-court-awards-damages-to-couple-who-had-twins-after-ivf-mix-up (11/24/21)

International Surrogacy Updates:

India, Israel, and Spain are among a number of countries enacting new surrogacy legislation, while in-progress surrogacy arrangements in Ukraine are raising concerns given the unrest in that country.

Israel

Effective January 11, 2022 surrogacy services have been extended and are now available to same-sex couples, single men and transgender people. The law reflects a significant shift from prior restrictions in that country.

https://www.al-monitor.com/originals/2022/01/israel-greenlights-surrogacy-same-sex-couples-single-men#ixzz7IjpQZGwN (1/9/22)

India

Once widely recognized as the country of choice for international surrogacy, proposed laws continue to further restrict access to ART services in India. Following earlier restrictions on international intended parents using Indian surrogacy, the new bill only would only permit surrogacy services to Indian nationals who are heterosexual couples, have been married for more than five years, and do not have any other children, with the woman under 50 years and the man under 55 years. It would allow surrogacy rights to widows and divorced women, but   would not allow access to LGBTQI+ people, single individuals, or cohabiting unmarried couple.

https://www.youthkiawaaz.com/2022/01/surrogacy-bill-a-double-edged-sword-against-lgbtqia-and-single-parents/; Youthkiawaaz (01/19/22.

https://thediplomat.com/2022/01/indias-new-reproductive-laws-trigger-debate/; The Diplomat (South Asia), (01/07/22).

Madrid, Spain

Madrid’s regional president is taking action to increase falling birth rates in the Madrid autonomous region by announcing a US$5 billion plan that will: increase the maximum age at which women can undertake IVF treatments free of charge from 40 years to 45 years; cover such services to women who already have a child; increase the covered number of IVF cycles from two to four; establish two new IVF treatment units to help reduce waiting times; and establish the first egg donation bank in the city of Madrid.

https://www.theolivepress.es/spain-news/2022/01/10/free-ivf-up-to-age-45-madrids-isabel-ayuso-unveils-grand-plans-to-encourage-motherhood-as-birth-rates-fall-across-spain/; The Olive Press, (01/10/22)

Ukraine

Ukrainian international surrogacy arrangements are raising safety and travel concerns amidst the threat of imminent Russian-Ukrainian conflict.

In recent years, as other countries closed, Ukraine has been an increasingly attractive country for heterosexual couples seeking international surrogates and surrogacy arrangements (the country bans surrogacy for same-sex couples). Now, as concerns of rising instability and conflict in Ukraine grow, international intended parents from Ireland and the UK have been in the news over efforts to ensure both the safety of the participants and the ability to obtain passports and travel arrangements back home for the babies and parents. The withdrawal of diplomats from Ukraine is hampering efforts to obtain passports. The Irish Department of Foreign Affairs is asking any Irish intended parents with Ukrainian surrogates to contact them to make plans to support safe passage of the infants into Ireland after birth, and estimates at least 14 families will need such support.

https://inews.co.uk/news/world/british-couple-face-nerve-racking-wait-take-newborn-baby-home-ukraine-1419895

https://www.bionews.org.uk/page_161961; Bionews (01/31/22)

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

ReproductiveFacts.org
is a patient education website of ASRM.
 

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