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Liberals hope to deal with HIV non-disclosure issue if re-elected: Lametti

The Canadian Press

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TORONTO — The Liberals hope to address the criminalization of HIV non-disclosure if re-elected in the fall, the federal justice minister said Friday as advocacy groups pushed the government to make changes to the law.

HIV non-disclosure has led to assault or sexual assault charges because it’s been found to invalidate a partner’s consent — the rationale being that if someone knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.

Advocates say the justice system lags behind the science on the issue, with a growing body of evidence saying there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has had a suppressed viral load for six months.

A parliamentary committee has been examining the issue for months and is expected to release a report with recommendations next week. Justice Minister David Lametti said the Liberals want to address the matter but won’t have time to act before the October election.

“Our legislative runway is over,” Lametti said after speaking at a symposium on HIV criminalization in Toronto. “The house will rise at some point, perhaps as early as next week … I hope that our government will be re-elected so we’ll be able to hit the ground running.”

Lametti said the Liberals, if returned to power, could explore options that include drafting a criminal law provision that targets intentional transmission of HIV.

“We need to look at the criminal law … and look at what’s within our jurisdiction … and trying to achieve that balance, as a number of people in the room have stated, in trying to draft a criminal law provision which targets only intent and not criminalize everything else,” he said.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, said he’s concerned that the timing of the committee’s report — so close to the federal election — could mean its recommendations get lost.

“It’s unfortunate that it’s taken this long, several-year process since the last election, to get to the point of actually having a committee report with some recommendations that could then inform possible legislation,” he said. “The issue, however, isn’t going to go away for people living with HIV … we will continue to press for Criminal Code reform.”

In 2017, then-federal justice minister Jody Wilson-Raybould said she would examine how the criminal justice system dealt with people who do not disclose their HIV status to sexual partners.

Late last year, the government instructed federal prosecutors in the North that they should no longer prosecute anyone for not disclosing their HIV status to a sex partner where there is no risk of transmitting the virus. The rules apply only in the territories where federal prosecutors have jurisdiction.

Elliott said he’s hopeful that the Justice and Human Rights committee’s report will include a recommendation to establish a consistent policy for prosecutors at the provincial level.

Agencies advocating for de-criminalization of HIV non-disclosure agree that the law needs to change and it is a public health issue, not something that should be dealt with as sexual assault, he said.

“There is just a vast overreach in the Criminal Code as it’s been interpreted and applied,” he said. “Parliament needs to fix that and that will remain the case after the coming election.”

Shawn Jeffords, The Canadian Press

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Fertility doc used own sperm to inseminate patients: medical regulator

The Canadian Press

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TORONTO — An Ottawa fertility doctor irreversibly violated vulnerable patients by using his own sperm, or that of the wrong donor, to artificially inseminate several women over three decades, a discipline committee heard Tuesday.

Lawyers for the College of Physicians and Surgeons of Ontario are asking the regulator’s discipline committee to revoke Dr. Bernard Norman Barwin’s medical licence, saying it is the only appropriate penalty for such a shocking abuse of trust.

“There is no precedent for the case you have before you at this college,” Carolyn Silver, a lawyer for the regulator, told the committee.

“Dr. Barwin’s patients and their families were the unsuspecting victims of his incomprehensible deception,” which saw him contradict their specific instructions without their knowledge or consent, she said.

His actions have traumatized entire families and left them forever altered, she said.

The committee ruled earlier Tuesday that Barwin, formerly a trusted infertility doctor who began working in the field in the 1970s, committed professional misconduct and failed to maintain the standards of the profession.

An uncontested statement of facts read before the committee laid out the cases of more than a dozen patients who say they suffered irreparable harm as a result of Barwin’s actions.

Some patients discovered their children were half-siblings, even though they had requested the same donor be used for both, the document said. Several men learned the children they had raised were not biologically theirs.

Rebecca Dixon, who waived a publication ban protecting her identity, said she discovered three years ago that Barwin — and not the man who raised her — was her biological father.

“In that moment, my life changed forever,” she told the committee, adding she felt her entire identity was thrown into question.

The news made her feel ashamed and “contaminated,” and strained her family, she said. Even now, Dixon said she continues to scan the crowds in Ottawa, looking for people who look like her and who may be her half-siblings.

A woman who can only be identified as Patient M said she learned recently that her teenage daughter was conceived using an unknown donor’s sperm rather than her husband’s. She has not yet broken the news to her daughter, worried the shock would be debilitating at such a “fragile” age, she said.

Patient M said Barwin went out of his way during the procedure to show her the vial of sperm with her husband’s name on it, knowing it contained material from another man.

“I still felt so violated, I felt dirty, almost as if I’d been raped,” she told the committee.

Barwin, 80, who did not attend the hearing, pleaded no contest to the allegations through his lawyer.

According to the statement of facts, an expert retained by the college to review Barwin’s case found it was unlikely the doctor’s use of his own sperm was accidental.

Barwin’s explanation that contamination must have occurred when he used his own sperm to calibrate a sperm counter is neither plausible nor believable, the expert said in the statement.

“This is a tragic situation in which a sea of avoidable harm was done,” the expert said.

Barwin had previously been disciplined for artificially inseminating several women with the wrong sperm, admitting to professional misconduct when he appeared before committee in 2013. At the time, Barwin said errors in his practice had left three patients with children whose biological fathers were not the ones they intended.

The committee then suspended him from practising medicine for two months, but Barwin gave up his licence the following year.

There was no evidence in that case that Barwin was the biological father of any of his patients’ children, said Silver, the college’s lawyer. Barwin intentionally concealed what he was doing, she said.

Barwin faced fresh allegations Tuesday of incompetence, failing to maintain the standard of practice of the profession and of engaging in dishonourable or unprofessional conduct.

If the committee decides to revoke Barwin’s licence, other medical regulators would be alerted should he apply to practise medicine elsewhere.

Barwin is also facing a proposed class-action lawsuit launched by several of his patients. The lawsuit alleges more than 50 children were conceived after their mothers were inseminated with the wrong sperm, including 11 with Barwin’s.

Paola Loriggio, The Canadian Press

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Licence revoked for doc who used own sperm to artificially inseminate patients

The Canadian Press

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TORONTO — An Ottawa fertility doctor who used his own sperm as well as that of the wrong donors to artificially inseminate several women caused “irreparable damage” that will span generations, a disciplinary panel with Ontario’s medical regulator said Tuesday as it revoked his medical licence.

Dr. Bernard Norman Barwin betrayed the trust of patients who turned to him for help in starting a family, the discipline committee for the College of Physicians and Surgeons of Ontario said.

The committee also expressed frustration that Barwin, 80, was not present to receive the reprimand, calling it unfair that he would not face the victims of his “disgraceful” conduct.

“It is unfortunate that at this time all we can do is revoke your licence to practise medicine and … deliver this reprimand,” said Dr. Steven Bodley, chair of the panel. “We do, however, take some solace in the fact that you are no longer in a position to cause further harm.”

The discipline committee had ruled earlier Tuesday that Barwin committed professional misconduct and failed to maintain the standards of the profession.

Lawyers for the college had then asked the committee to revoke Barwin’s licence, saying it was the only appropriate penalty for such a shocking abuse of trust. The college’s decision to do so means other medical regulators will be alerted should he apply to practise medicine elsewhere.

An uncontested statement of facts laid out the cases of more than a dozen patients who said they suffered irreparable harm as a result of Barwin’s actions, starting in the 1970s through the early 2000s.

Barwin pleaded no contest to the allegations through his lawyer.

A lawyer for the college said Barwin’s actions traumatized entire families.

“There is no precedent for the case you have before you,” Carolyn Silver told the disciplinary committee. “Dr. Barwin’s patients and their families were the unsuspecting victims of his incomprehensible deception.”

Some patients discovered their children were half-siblings, even though they had requested the same donor be used for both, the statement of facts said. Several men learned the children they had raised were not biologically theirs.

Rebecca Dixon, who waived a publication ban protecting her identity, said she discovered three years ago that Barwin — and not the man who raised her — was her biological father.

The committee heard Dixon and her family first became suspicious of her lineage after she was diagnosed with celiac disease, a hereditary condition that neither of her parents shares. Eventually a DNA test confirmed Barwin was her father.

“In that moment, my life changed forever,” she told the committee, adding she felt her entire identity was thrown into question.

The news made her feel ashamed and “contaminated,” and strained her family, she said.

Even now, Dixon said she continues to scan the crowds in Ottawa, looking for people who look like her and who may be her half-siblings. So far, Dixon said she has identified 15 half-siblings, though the case before the college involves only seven patients with children fathered by Barwin.

She said after the hearing that more victims may yet emerge as others discover their parentage or that of their children is not what they believed.

Dixon also said she was glad that Barwin’s licence was revoked, adding the case raises questions about how the fertility industry is monitored and regulated.

A woman who can only be identified as Patient M told the committee she learned recently that her teenage daughter was conceived using an unknown donor’s sperm rather than her husband’s. She has not yet broken the news to her daughter, worried the shock would be debilitating, she said.

Patient M said Barwin went out of his way during the procedure to show her the vial of sperm with her husband’s name on it, knowing it contained material from another man.

“I still felt so violated, I felt dirty, almost as if I’d been raped,” she said.

In a written statement submitted to the committee, a man who learned his daughter was biologically Barwin’s child said he was devastated by the discovery.

Barwin was cavalier in his dealings with them, even after the truth was uncovered, claiming he didn’t know what had happened but saw a family resemblance with his newly found biological daughter, the man said.

According to the statement of facts, an expert retained by the college to review Barwin’s case found it unlikely the doctor’s use of his own sperm was accidental. Barwin’s explanation that contamination must have occurred when he used his own sperm to calibrate a sperm counter is neither plausible nor believable, Dr. Edward Hughes said.

Barwin had previously been disciplined for artificially inseminating several women with the wrong sperm, admitting to professional misconduct when he appeared before committee in 2013. At the time, Barwin said errors in his practice had left a few patients with children whose biological fathers were not the ones they intended.

The committee then suspended him from practising medicine for two months, but Barwin gave up his licence the following year.

There was no evidence in that case that Barwin was the biological father of any of his patients’ children, said Silver, the college’s lawyer. Barwin intentionally concealed what he was doing, she said.

Tuesday’s hearing dealt with fresh allegations against Barwin of incompetence, failing to maintain the standard of practice of the profession and of engaging in dishonourable or unprofessional conduct.

As part of his penalty, Barwin will have to pay the college more than $10,000.

He is also facing a proposed class-action lawsuit launched by several patients. It alleges more than 50 children were conceived after their mothers were inseminated with the wrong sperm, including 11 with Barwin’s.

Paola Loriggio, The Canadian Press

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