Lawsuit against Ottawa fertility doctor leads siblings to each other

Marie Dubrule and Kat Palmer, who were never supposed to be sisters, have two missions: to find other siblings who belong to their unusual family, and ensure what happened to them doesn’t happen to anyone else.

“Hopefully the truth will come out for some of these families and they’ll be able to find out if they’re one of us as well and we can start these relationships,” said Dubrule, who grew up in Ottawa but moved to Victoria a few years ago.

“Every part of my life was impacted by this and not having known the truth all these years for me was unreal.”

“This” was finding out as adults that, along with their families, the two women’s paternal DNA is that of their parents’ fertility doctor – Norman Barwin – not the sperm of their dad or their parent’s chosen donor.

They eventually found each other and, to their surprise, more than a dozen other “siblings” like them.

They all share DNA with Barwin, who is now paying $13 million after a recent class-action settlement. He has not admitted any wrongdoing.

But to some people’s surprise, what he did is not actually a criminal offence in Canada, so there’s no criminal penalty.

“It is currently legal for a doctor to use his own sperm in his patient,” said Palmer, adding a doctor can also use someone else’s sperm without permission.

The class-action lawsuit levelled against Barwin was first launched by Rebecca Dixon and her family after they discovered through DNA testing she has Barwin’s paternal DNA, not her father’s as her parents wished.

So far, more than 200 people have joined, alleging they were conceived with the wrong sperm.

“What’s terrifying to me is there are no regulations, no laws in place to protect your own personal genetic materials once they leave your body and that’s a problem for me,” Palmer told CityNews.

It’s a problem for legal experts too. For lawyer Sara Cohen, it’s especially baffling given the penalty for paying a surrogate in Canada can amount to 10 years and $500,000.

“We have some weird criminal provisions – or I find them strange,” Cohen explained.

“Well, if you can make it illegal to pay a surrogate, then why can’t you make it illegal for anyone to change someone else’s sperm like to steal the sperm that they’re supposed to be using and input their own sperm? I don’t understand how that’s not illegal.”

She’s frustrated the Crown didn’t try to pursue charges in this case.

“Even if they’d lost and then changed the Criminal Code, it tells a very strong message when the public basically says this is unacceptable and charges need to be laid.”

However, Vancouver fertility doctor Albert Yuzpe isn’t certain a law would have prevented this.

“If it’s going to happen it’s going to happen,” he said. “What it may do is it may establish a level of punishment, but it certainly doesn’t establish that it couldn’t happen.”

Yuzpe believes medical ethics and regulatory oversight would do more to serve as safeguards. But those are two things Palmer says failed to stop Barwin, who ran the fertility clinic in Ottawa when she was conceived.

“He was able to operate in a much larger industry. There are several governing bodies who should have been able to identify errors in his practice and weren’t able to,” she explained.

The College of Physicians and Surgeons of Ontario has investigated Barwin three times, first in 1994 finding, essentially, clerical issues. He was investigated again in 2014, at which point he was fined, then resigned. In 2018, over these allegations, his license was revoked.

‘A wonderful silver lining’

Despite the passing of years, Palmer says not much has changed in practice since the day she was born.

What has is that her relatives have multiplied, and she and Dubrule embracing their connection and their new expanded family.

“It’s been a wonderful silver lining for me. They are justice, all of my siblings. Every single one of them has been an incredible addition to my life,” said Dubrule.

It’s also given her a sense of belonging.

“Now I understand who I see in the mirror. So I kind of lost my identity then re-found my identity again, somehow through all of this.”

Palmer and Dubrule have 15 other siblings they know of and believe there are more. They’re now searching for them, hoping to give others who may have felt as they once did a sense of belonging. Part of the money from the class action settlement is being set aside for DNA testing for families who had been treated by Barwin.

Dubrule hopes the settlement will give others closure.

“Hopefully the truth will come out for some of these families and they’ll be able to find out if they’re one of us as well, and we can start these relationships.”