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Issue link: https://digital.canadianlawyermag.com/i/1547060
www.canadianlawyermag.com 67 As fertility clinics and obstetric delivery rooms generate more litigation, Canada's legal framework for reproductive medicine is still being written Reproductive malpractice: where Canadian law stands WHEN A woman enters a fertility clinic or a delivery room, she places extraordinary trust in medical professionals at one of the most vulnerable moments of her life. When that trust is violated – through a misused embryo, a contraindicated drug, or a failure to disclose a critical option – Canadian law is working out exactly what she and her family are owed and by whom. A Neinstein LLP survey released in February 2026 found that 34 percent of Canadian mothers describe their labour as challenging or distressing, rising to 37 percent among visible minority mothers. Those numbers map onto a legal landscape where the duty of care in reproductive medicine remains unsettled. Rose Leto, a medical malpractice partner at Neinstein Personal Injury Lawyers in Toronto, says the most common breach she sees in obstetric cases involves oxytocin management. "Pitocin, which is the synthetic version of oxytocin, is a drug used to augment labour, and it often does a really good job in increasing the contractions," she says, "but it's also quite a dangerous drug, and there are some significant rules that come with using it." When those rules are not followed, "they don't take mom's complaints seriously, and they don't inves- tigate those concerns, that can lead to a disastrous outcome for both the mom and the baby," she says. Establishing a viable claim requires more than a poor outcome. The breach- causation-damages framework still applies, and a distressing experience alone does not satisfy it. The survey findings that 32 percent of mothers felt dismissed by medical professionals and 28 percent felt pressured into decisions reflect a pattern that Leto's firm consistently sees. "Women without a support system, a support person, and women of a visible minority tend to have poorer outcomes," she says. "That's just been INSIDE CANADA'S UNREGULATED FERTILITY CLINICS Assisted Human Reproduction Act (federal, 2004) Prohibits the commercial sale of sperm, eggs, and paid surrogacy. Does not regulate clinic operations, lab standards, or error reporting. College of Physicians and Surgeons of Ontario Can inspect fertility clinics only where procedures involve anaesthesia. Laboratory practices fall outside its authority. Embryologists Not a licensed or regulated profession in any Canadian jurisdiction. Error reporting No mandatory reporting requirement exists anywhere in Canada. our anecdotal experience, and the study supported that finding." One of the most consequential obstetric cases she flags is Hemmings v. Peng, which her firm argued as co-counsel before the Supreme Court of Canada in February 2026. It involves a high-risk obstetric patient who was not offered the right to terminate a preg- nancy she did not want, and later suffered a cardiac arrest during a caesarean section under anaesthesia. At trial, the client was awarded $12 million, which was upheld by the Ontario Court of Appeal, but only against the anaesthesiologist. The case is LEGAL REPORT MEDICAL MALPRACTICE