Families who claim disgraced Ottawa fertility doctor Norman Barwin used the wrong sperm — or even his own sperm — in the conception of at least 100 children could receive a portion of a multi-million-dollar payout after a judge certified the class-action lawsuit launched in 2016.
The Ontario Superior Court certified the class-action suit in the landmark case at a hearing on Wednesday, which includes a negotiated proposed settlement worth $13.375 million.
"While I am aware of a few other doctors in the world who did what Dr. Barwin did, I am not aware of any other class action or settlement like this anywhere else in the world," said Peter Cronyn, the lawyer representing the families.
The class action has grown to 226 members, including former patients and children conceived through artificial insemination — 17 of whom have discovered Barwin is their biological father through DNA.
The lead plaintiffs, Dan and Davina Dixon, had sought Barwin's help to conceive a child together, with their daughter Rebecca born in 1990. Only in recent years did the family learn that Barwin — not Dan Dixon — is Rebecca's biological father.
In 2019, the College of Physicians and Surgeons of Ontario stripped Barwin of his medical licence, finding he had committed professional misconduct by using his own sperm to inseminate several patients and using the wrong sperm with many others. Barwin pleaded no contest at the time and was ordered to pay a fine of $10,730.
The class-action agreement states the negotiated settlement is not an admission of wrongdoing by Barwin, who "has denied and continues to deny all of the plaintiffs' claims in this action," according to the document certified Wednesday.
The document also states Barwin agreed to the negotiated settlement, concluding "this agreement is desirable in order to avoid the time, risk and expense of continuing with the litigation."
Settlement funds would be distributed among claimants according to "categories of harm," as well as cover legal and administrative costs. And $75,000 would be set aside to set up and operate a DNA database for Barwin's patients, sperm donors and the children conceived, who will all be offered a chance to voluntarily contribute to the database.
"The primary purpose of the DNA database will be to provide the children class with the opportunity to identify their biological fathers, obtain medical health history, and locate half-siblings," reads the proposed settlement.
Maximum payout: $50K per claimant
Barwin and his lawyer refused to comment on the proposed settlement, which calls for compensation as much as $50,000, depending on the "category of harm" to the individual.
The highest payout is reserved for patients "where they have DNA evidence showing that the child or children conceived with Dr. Barwin's assistance, or with semen previously entrusted to Dr. Barwin, are not the biological child of the man in the couple."
The first child of those patients can receive $40,000, and each additional child in the same family is "entitled up to a further $10,000 each, in total."
Patients who entrusted sperm for storage and safekeeping, which then resulted in the conception of a child for an unrelated patient, have access to up to $25,000. The children in those cases can get a maximum of $40,000.
Number of claimants could change
The current payment amounts for each claimant could increase or decrease depending on how many claimants successfully qualify under the class action.
Between now and November, members currently signed on can opt out. For 120 days after November others who qualify can enter the suit, and the $13,375,000 set aside would get reallocated accordingly.
- Disgraced fertility doctor's clinic broke federal rules as far back as 1999, inspection reports reveal
Cronyn estimates there were probably 500 successful births through artificial insemination linked to Barwin during the claim period between 1973 and 2012, so he said there is potential for the number of claimants to increase beyond the current 226.
The amount negotiated in the proposed settlement came through what Cronyn called "hard fought" negotiations.
"By the end of the process, we were certain there was no more to be had and that was the number," he said.
The parties are expected to return to court in November.
ABOUT THE AUTHOR
Amanda Pfeffer has worked for the CBC across the country, including Montreal, Vancouver, Fredericton, Quebec City and Ottawa. She welcomes story ideas and tips at email@example.com.
Credit belongs to : www.cbc.ca