Fertility and obstetrical 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 investigate those concerns, that can lead to a disastrous outcome for both the mom and the baby,” she says. 

^{Rose Leto}

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 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 pregnancy 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 testing whether a physician who fails to offer a patient the right to terminate the pregnancy 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 criminal legislation – breaches can actually constitute offences and attract significant penalties,” says Jan Marin, a senior lawyer at Gluckstein Lawyers in Toronto who practises in both birth injury and fertility negligence. The act prohibits the commercial sale of sperm, eggs, and surrogacy services but establishes no operational standards for clinic practice. Embryologists who create and handle biological materials are not licensed professionals in Canada, and there is no mandatory error reporting in any jurisdiction. “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.” 

^{Jan Marin}

The errors she encounters span accidental 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 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 settlement 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 guidance 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: individual IVF success rates remain relatively 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 acknowledges 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 child – you’ve gained a child. So that’s not a damage,” she says. Neither this argument 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 reproductive 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 contraindicated 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 interests 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 question 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 necessarily 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 expansively 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}