Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
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www.canadianlawyermag.com 69 correct father, including in some cases his own. Many affected families discovered this through DNA testing. The class covered mothers whose consent was violated, their partners and spouses, and the children themselves. Regional Senior Justice Calum MacLeod approved a $13.375-million settle- ment in November 2021, with individual payouts reaching up to $50,000 depending on harm category. The causation problem Shanti Barclay, a partner at Zarek Taylor Grossman Hanrahan LLP in Toronto whose health law practice includes institutional liability defence, says Barwin is the only reported Canadian decision to provide guid- ance on damages for fertility clinic claims. "If the wrong sperm had not been used, would this couple or person end up with a child at all?" she asks. "And then is the wrong child better than no child?" The defence relies on statistics: indi- vidual IVF success rates remain rela- tively low even when procedures are performed correctly, meaning a wrong- donor or wrong-embryo outcome may have produced the only live birth a given patient would have achieved. Barclay acknowl- edges the approach has limits: "That might get harder as the technology gets better," she says. On damages, she argues for a deduction corresponding to the benefit of gaining a child, by analogy from Family Law Act claims. "So, if you have gained a "There's no tracking of major fertility errors. So, one clinic could have serious errors happening repeatedly, and there's no centralized system that necessarily connects the dots" Jan Marin, Gluckstein Lawyers child – you've gained a child. So that's not a damage," she says. Neither this argu- ment nor the insurer question has yet been tested by a Canadian court. Where the law is heading The outer limit of the duty of care in repro- ductive medicine was addressed in Florence v. Benzaquen, 2021 ONCA 523, which tested whether pre-conception negligence gives rise to a duty of care to children not yet conceived. Writing for the majority with Justice MacPherson concurring, Justice Gillese upheld dismissal of the children's claims: whether a drug is contraindicated goes to the standard of care owed to the mother, not to whether a duty was owed to unconceived children. In Ontario, no duty of care runs to a future child for pre-conception negligence. Justice Fairburn dissented. Prior caselaw drew a contrast between indicated drugs – where informed consent governs – and contra- indicated drugs – where no non-negligent physician would have prescribed them. Where a drug is truly contraindicated, she argued, the conflict-of-interest concern falls away because the mother and future child's inter- ests align, and she would have allowed the claim to proceed to trial. Leave to the SCC was denied. The parents' claims were resolved confidentially. For Leto, the dissent leaves the ques- tion open. "The dissenting judge drew an important distinction between the informed-consent analysis – whether the mother was adequately advised of the risks, including that the drug was contraindicated – and the separate question of whether a duty of care could be owed to a child who had not yet been conceived," she says. Leto does not view the decision as neces- sarily foreclosing the issue. "I don't think the door is necessarily closed to a claim involving a subsequently conceived child in a different factual context," she says. How the Supreme Court rules in Hemmings will not resolve the Florence duty question directly but will signal how expan- sively Canadian courts are now prepared to define what physicians owe patients at the most consequential moments of their reproductive lives. SURVEY FINDINGS AT A GLANCE 34% of mothers describe their labour as challenging or distressing 37% of visible minority mothers say the same – rising to 51% among those without a partner or support person 65% experienced unplanned complications or interventions; 70% of those said they were unexpected 32% felt dismissed or ignored by medical professionals at times 28% felt pressured into medical decisions 46% say the experience affected their mental health (rising to 64% among those with very challenging births) 65% feel society focuses only on a healthy baby outcome, ignoring what the mother goes through Source: Birthmarks: The Cost of Motherhood, Neinstein LLP / Fuse Insights, February 2026