Sperm donor mix-up: Where do these two girls come from?

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He was known only as donor number 3168, a laboratory identity with flesh-and-blood consequences.

Three years ago, Trudy Moore found that her daughter, Samantha, conceived using her husband's sperm and her sister as a surrogate, was not a genetic match to her husband. Frantic for answers, she confronted her doctor, who suggested in e-mails to Ms. Moore that he may have contaminated her husband's sample - possibly with 3168.

Determined to find out, Ms. Moore consulted an online registry which connects donor-conceived children with others conceived using the same donor. There she found Jacqueline Slinn, a patient of the same doctor and a single mother whose daughter Bridget was supposed to have been conceived using donor 3168. Ms. Moore asked to test Samantha against Bridget to see whether their DNA matched.

The results stunned both of them: The two girls are not related - nor is either a match to 3168.

And the only federal regulatory body with the power to investigate what happened is paralyzed by a court challenge, leaving the thousands of Canadians who use assisted reproductive technologies each year without an effective watchdog.

"We love our daughter, don't get me wrong," said Ms. Moore, 37. "We would have loved her if she came from Mars. [But]we don't know whose sperm was put into my sister… I can't even tell you how guilty and how rotten and awful you feel about that."

Assisted Human Reproduction Canada is the federal regulatory body responsible for overseeing the fertility industry. Authorized by the Assisted Human Reproduction Act of 2004, the agency came into existence two years later with a mandate to license clinics, inspect them to ensure they comply with the act, and develop a registry of donor-conceived children.

However, in 2008 the Province of Quebec challenged the federal government's jurisdiction over fertility treatments. The Supreme Court has yet to return its ruling and, in turn, Health Canada has said it is not able to move forward with developing regulations.

AHRC does not even keep track of exactly how many thousands of Canadians use assisted reproductive technologies annually. Nor does it require doctors who do certain types of fertility treatments, like the ones Ms. Moore and Ms. Slinn received, to have special training.

Part of AHRC's mandate is to catalogue a list of complaints from patients who report violations of the act. Information obtained through an Access to Information request reveals that in its four-year history, AHRC only has four complaints on record - none about Bernard Norman Barwin, the general practitioner who inseminated Ms. Moore and Ms. Slinn.

"I do this every day of my life for over 30 years," Dr. Barwin, founder of the Broadview Fertility Clinic in Ottawa, said in an interview about the Moore case. "This happened … not because of malice or any other reason. It is just one of those things. The last thing I wanted to happen has happened."

In April, 2009, Ms. Moore and her husband, Matthew Guest, launched a medical malpractice lawsuit against Dr. Barwin, seeking more than $1-million in damages. Last month, Ms. Slinn also filed suit, seeking over $1-million and an order to identify daughter Bridget's sperm donor.

"It is not about the money," said Mr. Guest. "We have certain issues that we have to make sure we figure out for Samantha's future and for our future."

Even if it turns out that Samantha was conceived with another sperm donor, she will never be able to meet him or find out her genetic roots: the Assisted Human Reproduction Act guarantees anonymity for sperm donors. The cruel irony is that Ms. Moore and Mr. Guest have been inadvertently swept into the issue of donor privacy rights without ever signing up for a donor in the first place.

However, it would be an even greater complication if it turned out that Samantha's father was not a sperm donor. Sperm donors sign away their legal rights as parents. If the sperm came from someone who wasn't a donor - say, a patient of Dr. Barwin's - that person could potentially seek legal custody of Samantha.

Ms. Moore and Mr. Guest aren't the only ones distressed by the paralysis at Assisted Human Reproduction Canada. The agency is operating at just 36-per-cent capacity, according to an Access to Information request filed in February. Of the 44 positions available, only 16 people are employed. A top-level employee at AHRC, who asked to remain anonymous, admitted there was just no work to do until the court rules.

Health Canada said it is waiting for the court decision before publicizing its regulations. "Out of respect for the authority of the Supreme Court of Canada in matters of constitutional law and pending its decision, Health Canada will not prepublish further regulations until the question before the court has been resolved," said Ashley Lemire, spokesperson for Health Canada.

But Jan Silverman, an infertility counsellor with Women's College Hospital in Toronto, isn't holding her breath. "I think [the act]sucks big time," she said. "Even among the fertility field, there are no standards… any doctor can call themselves an infertility specialist. They don't even have to be gynecologists."

The Access to Information request revealed that AHRC has not conducted a single inspection of a fertility clinic.

"There doesn't seem to be a timeline for when [inspections are]going to start," said Laura Shanner, an associate professor at the John Dossetor Health Ethics Centre at the University of Alberta. "That is very frustrating, it is also very dangerous. Patients are not being protected."

For Ms. Moore and Mr. Guest, the struggle with infertility lasted five years before they took the route less travelled: They asked Ms. Moore's sister to be a surrogate and used Dr. Barwin's fertility clinic to inseminate her with Mr. Guest's sperm. They were thrilled when the procedure worked.

But on the night their daughter Samantha was born, Ms. Moore learned there was a possibility the child was not a genetic match to her husband. Samantha was born Rh positive. Mr. Guest and Ms. Moore's sister are both Rh negative, meaning the child should also have been Rh negative. (Rh factor is a protein on top of red blood cells.)

Instead of being able to enjoy what should have been the happiest moment of her life, Ms. Moore was riddled with anxiety. "One of my huge fears the whole weekend was that somebody from the hospital was going to come back to us and say, 'You can't leave with this baby.' " DNA tests later confirmed that Mr. Guest is not Samantha's biological father. The surrogate's husband has also been ruled out.

The case, Dr. Barwin said in the interview, "is my worst nightmare. This is not the thing one ever wants to happen. I was very upset. I did communicate with the patient. We tried to sort this out. We still haven't been able to find where the basic problem lay."

Dr. Barwin has more than 30 years' experience and countless awards. He received the Order of Canada in 1997 for his contributions to women's reproductive health. He holds several honorary degrees, including one given to him by Carleton University last summer.

But the Moore and Slinn cases are not the first suggesting a mix-up at the Ottawa clinic. In 1994, Loree-Ann Huard and Wanda Cowton went to Dr. Barwin for artificial insemination. The following year, the lesbian couple sued Dr. Barwin for inseminating Ms. Huard with the wrong donor sperm. In 1998, they settled out of court for an undisclosed sum. As part of the settlement, Ms. Huard and Ms. Cowton are forbidden to talk to the media about their case.

As for Ms. Slinn, the profile of 3168 was certainly appealing: a corporate banker with an MBA, athletic, with two Labrador retrievers; he even likes to fix things around the house. Miss Slinn gave her daughter a traditional Irish name so that she would feel some connection to her father.

"Bridget is an Irish name, the donor was Irish," she said, "and now that has all gone down the toilet because we don't know who he is."

Although Ms. Slinn and Ms. Moore are both grateful for the children they have, not knowing their biological father - and being unable to get help from the very government agency established to provide it - has complicated their lives.

Ms. Moore is especially concerned about how she will tell her daughter, nearly three years old now, where she came from. "What do we tell her?" she asked, choking back tears. "How do I tell her it was a mistake without making her feel like she was a mistake?"

Special to The Globe and Mail