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LEGAL REPORT
MEDICAL MALPRACTICE
clinic practice. Embryologists who create and
handle biological materials are not licensed
professionals in Canada, and there is no
mandatory error reporting in any jurisdic-
tion. "There's no tracking of major fertility
errors," Marin says. "So one clinic could have
serious errors happening repeatedly, and
there's no centralized system that necessarily
connects the dots. I certainly have multiple
cases involving the same clinic."
The errors she encounters span acci-
dental embryo destruction, wrong-donor
implantation, and cases where an embryo
is created using the wrong person's sperm
or egg, leaving the child biologically
connected to one parent but not the other.
A growing category involves errors that
are invisible at the time of treatment but
surface years later through genetic testing.
In law, almost nothing is resolved: "It is
still a bit of the Wild West when it comes to
the law," she says.
The primary Canadian precedent on
damages is Dixon et al. v. Barwin, 2021
ONSC 7257, a class action against Ottawa
fertility physician Dr. Norman Barwin, who
for decades had inseminated patients using
genetic material that was not that of the
testing whether a physician who fails to offer
a patient the right to terminate the preg-
nancy should be held responsible for her
devastating injuries.
Inside the fertility clinic: a legal
frontier
If obstetric malpractice operates within
a relatively settled framework, fertility
clinic negligence is something else. "The
only meaningful regulation that governs
the fertility industry is a federal piece of
legislation called the Assisted Human
Reproduction Act, and it's essentially crim-
inal legislation – breaches can actually
constitute offences and attract significant
penalties," says Jan Marin, a senior lawyer
at Gluckstein Lawyers in Toronto who prac-
tises in both birth injury and fertility negli-
gence. The act prohibits the commercial
sale of sperm, eggs, and surrogacy services
but establishes no operational standards for
"Women without a support system,
a support person, and women of a visible
minority tend to have poorer outcomes"
Rose Leto, Neinstein LLP
