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68 www.canadianlawyermag.com 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