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Canada Criminal charges not quite applicable to fertility doctor impregnation cases

01:58  10 april  2018
01:58  10 april  2018 Source:   cbc.ca

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A retired Indiana infertility specialist who used his own sperm to impregnate unwitting patients will not face prison time. Prosecutors are unable to file additional charges against Cline because there is no law on the books in Indiana that prohibits fertility doctors from using their own sperm.

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a close up of a person: A lawsuit against Dr. Norman Barwin has been growing, with more patients alleging that Barwin used his own sperm to impregnate them without their consent.© CBC A lawsuit against Dr. Norman Barwin has been growing, with more patients alleging that Barwin used his own sperm to impregnate them without their consent.

A growing civil suit against an Ottawa fertility doctor accused of using his own sperm to impregnate patients has not led to criminal charges, and one expert says that's likely because there isn't really a law dealing with allegations like these.

Norman Barwin has been accused of fathering at least 11 children using his own sperm without the consent of his patients and without informing them.

The allegations in the suit — none of which has been proven in court — date back to the 1970s and include Barwin's time at the Broadview Fertility Clinic and Ottawa Hospital.

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A former fertility doctor in Indiana who was accused of using his own sperm to impregnate his patients pleaded guilty on Thursday to lying to investigators, but received no jail sentence. “There were significant limitations to how a criminal case could proceed against Dr . Cline, but ultimately he

Ottawa police said they cannot confirm or deny that an investigation is underway, but did say Barwin is not currently facing criminal charges.

'Not close enough'

Carissima Mathen, vice-dean of the University of Ottawa's law school, told CBC Radio's All In A Day the allegations might not be covered by any current law.

"This could fall into a grey area where this is behaviour that everyone would find repellant and abhorrent, if the allegations are true, but it may not squarely fit inside the definition of offences within the Criminal Code," she said.

"You have a number of offences that seem close, but maybe not close enough."

The allegations, if true, could be a considered a violation of one's body, Mathen said, but might not meet the standard for assault or sexual assault under current law.

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Criminal law operates differently according to what crime the state has charged a defendant with. Each crime has its own set of elements that define it, as well as. Attorneys aren't needed for every criminal case , but in many cases legal assistance can be beneficial, if not crucial.

Felonies: Criminal charges that are considered to be more serious are classified as felony offenses, or indictable offenses. That is a much lower standard of proof than exists in a criminal case , in which the defendant must be proved guilty beyond a reasonable doubt.

"Those are all premised on actual physical contact, so that would be the issue here," she said.

A fraud case would also be difficult to prove because they usually involve a more direct financial aspect, she said.

Criminal law often moves slower than society and technology, Mathen added. Parliamentarians may have to look at changing laws to deal with allegations like these rather than having courts bend existing laws to fit them.

"We have a long-standing principle that the courts should not be creating new crimes. The courts apply law; they should not be making law," Mathen said.

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