Last week, the Ontario Superior Court (that’s Ontario, Canada, not Ontario, California) certified a class-action suit against disgraced fertility doctor Norman Barwin. The certified class reached a proposed $13.375 million settlement for victims of Barwin, subject to approval by the court. The victims are the patients and children of Barwin that discovered Barwin used his own sperm, as well as sperm from unknown sources, to “treat” unknowing and nonconsenting fertility patients.
Given the number of doctors who have been exposed — with the advent of direct-to-consumer DNA testing — as using their own sperm on unsuspecting patients, and the paucity of consequences most have faced, the potential $13 million-plus settlement is big news.
The lead plaintiff in the case, Rebecca Dixon, didn’t discover that she was not biologically related to both her parents until she was 25. Her parents, Daniel and Davina Dixon, are co-lead plaintiffs in the case.
In 1989, the Dixons went to Broadview Fertility Clinic and were seen by Barwin for fertility treatment. Davina Dixon underwent multiple insemination treatments, each time with Barwin assuring the couple that the insemination was with Davina’s husband Daniel Dixon’s sperm. The couple conceived their daughter Rebecca Dixon, and raised her with each of them believing that they were both her biological parents.
Only in 2016 did Rebecca Dixon think something might be amiss. She saw a Facebook post explaining that it was very unlikely for the child of two blue-eyed parents (such as Dixon’s parents) to have brown eyes (like Rebecca Dixon). She asked her doctor about it, who suggested DNA testing or at least testing as to blood type. They did the latter, finding that Rebecca was O-positive and Daniel Dixon AB. Rebecca learned it was impossible for an AB parent to have an O blood type genetic child. DNA testing through 23andMe led Rebecca to a paternal half-sibling who knew Barwin to be her genetic father.
Rebecca and her parents discovered they were not the only victims of Barwin. In 2019, Barwin was stripped of his medical license with the College of Physicians and Surgeons of Ontario, which found that he had committed professional misconduct by using his own sperm to inseminate several parents, and generally used the wrong sperm to inseminate many other patients.
The Dixons’ class action currently includes 226 members, both patients and those conceived by Barwin’s patients, including 17 persons confirmed to be genetically related to Barwin. The Dixons’ lawyer estimates that there were approximately 500 successful births through artificial insemination linked to Barwin during the claim period. Hence, the number of plaintiffs in the case could still rise significantly.
The class action lawsuit argues that Barwin owed Rebecca and the members of her plaintiff class duties of care in tort, the breaches of which give rise to claims for negligence, negligent misrepresentation, and/or infliction of mental suffering. Barwin owed similar and additional duties to his patients, including contractual duties giving rise to claims for breach of contract and battery.
If approved, the proposed settlement sets aside $75,000 for the creation and operation of a DNA database for Barwin’s victims. “The primary purpose of the DNA database,” explains the settlement proposal, “will be to provide the children class with the opportunity to identify their biological fathers, obtain medical health history, and locate half-siblings.” Of the remaining funds, up to $50,000 would be available to individual victims depending on their “category of harm.”
A Win, But Is It Enough?
Canadian assisted reproductive technology attorney Sara Cohen believes that this case and the pending settlement is an indicator of how ill-equipped our legal system is to find justice for victims other than through dollars and cents. It can’t force someone to apologize, or to recognize the harm caused to their victims. Moreover, Barwin has failed to see consequences through Canada’s criminal justice system, benefiting from a lack of specific laws on the books applicable to this type of previously unimaginable activity.
In good news, Cohen believes that the high settlement amount indicates the strong likelihood that the case would have been successful in a civil context if brought before a judge or jury. This is in stark contrast to the cases in the United States where plaintiffs have struggled to bring “doctor-donors” to justice, particularly where the child is the plaintiff. Courts have offhandedly described, and dismissed, many of such suits as “wrongful life” lawsuits.
The consequences faced by doctors who secretly used their own sperm on patients has been minimal. For instance, in the Donald Cline case out of Indiana, a doctor who is believed to have fathered over 50 children through his illicit “treatment” of patients, was given a suspended one-year sentence for obstruction of justice after initially lying to investigators. But a suspended jail sentence for an ancillary crime hardly seems like justice.
Another notorious case is that of Kim McMorries in Texas. McMorries continued to practice medicine despite it coming to light that he had used his own sperm on patients without their consent. Only a few months ago, McMorries announced his retirement. But that didn’t stop the Texas Medical Board from voting to revoke McMorries’ license, a decision which he is currently appealing.
One offspring from his activities is Eve Wiley (check out this podcast interview with her), a fierce advocate for fellow victims. She successfully led efforts to change the law in Texas, passing a statute that makes it clear that a doctor is not permitted to use unconsented-to gametes (sperm or eggs) or embryos with the treatment of a patient … and to do so would be actionable both civilly and criminally.
I checked in with Wiley on her reaction to the Barwin settlement. Wiley believes the settlement is a step in the right direction for fertility fraud victims, as the first case of its kind reaching a settlement via a class action lawsuit. “It was very disheartening to read that Barwin refused an admission of guilt. When Rebecca said this felt incomplete, I felt that to my core. We have been lied to our entire lives, and then gaslighted by these men. So an admission of guilt and their personal responsibility is the validation we deserve. We have been told to be ‘grateful to be alive,’ ‘at least we have doctor’s genes,’ and ‘we wouldn’t be here if it were for him.’ All of these marginalizing comments have told us that our pain is not validated. An admission of guilt from our parents’ abuser is an acknowledgement of our pain and our existence.”
The victims deserve more. But a large settlement is a giant leap in the right direction, sending the message to such doctors that this activity is not OK, they cannot get away with it, and the victims must be acknowledged. At the very least, monetarily.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.