http://news.nationalpost.com/2014/04/08/na0409-baby/
April 8, 2014
Born Canadian? Citizenship of babies born using new fertility methods sometimes unclear
By Tom Blackwell
A foreign-born baby with non-Canadian parents would become a citizen if the sperm or eggs used happened to originate from a Canadian donor
Malkiat Kandola always assumed that when his wife gave birth in India through in-vitro fertilization, their baby would automatically become a Canadian citizen, like the Vancouver-area truck driver himself.
But an immigration officer ruled otherwise, and now the Federal Court of Appeal has upheld that decision in a "groundbreaking" case that raises intriguing questions about the intersection between modern fertility treatment and immigration.
Because the embryo used in Ms. Kandola's IVF treatment was made from sperm and eggs donated by others, the child, now four, had no genetic connection to either parent. And without those blood ties, she could not become a citizen by birth, the court concluded in a 2-1 split decision.
It is one of a number of complex immigration scenarios that lawyers say are popping up as Canadians turn increasingly to new technologies and services to build families, often doing so outside of the country.
"It is a very difficult situation right now," said Sergio Karas, a Toronto immigration lawyer who sometimes hears from parents who have hired surrogate mothers overseas. "Science is always running ahead of the law. We now have technologies and ways of doing things that legislators never turned their minds to."
Even the judge who wrote last week's Federal appeal court's majority decision said Parliament should consider developing new legislation to address some of the issues.
Under the current law, for instance, a foreign-born baby with non-Canadian parents would automatically become a citizen merely if the sperm or eggs used in assisted reproduction happened to originate from a Canadian donor, suggested Justice Marc Noel.
The current policy requiring a genetic link also creates "an unequal treatment between children of Canadian citizens depending on the manner in which they were conceived," he wrote.
On the other hand, any child born on Canadian soil is automatically a citizen, even if the parents are not citizens, they used IVF and the sperm and eggs came from donors outside this country, said Michelle Flowerday, a Toronto-based fertility lawyer.
"It's a paradox."
She provided advice to another couple who wanted to have a baby by an American surrogate mother, in the United States, using their sperm and eggs. Because of the blood relationship, Ms. Flowerday concluded that the child would be born Canadian.
Mr. Kandola was not available for comment on the latest case.
Citizenship and Immigration is pleased with the ruling, said Mary Jago, a department spokeswoman. It recognizes that "derivative" or "by descent" citizenship has always been determined "through the bloodline," she said.
Mr. Kandola, a Canadian citizen, married a woman in India and, when they were unable to conceive naturally or with their own genetic material, tried IVF using donor sperm and eggs to create the embryo. Their daughter, Nanakmeet Kaur, arrived in June 2009.
Children born overseas to Canadian parents generally become citizens without question. Immigration officials, though, deemed that Nanakmeet was not Canadian because of the lack of genetic bond.
Her mother eventually was admitted to Canada as a permanent resident and for months the parents took turns flying back to India to look after their daughter, who began experiencing "acute anxiety," said Charles Groos, their B.C. lawyer.
They appealed to the Federal Court, and a judge overturned the immigration officer's ruling, paving the way for the girl to finally come to Canada in January, he said.
The Court of Appeal has now reversed that lower-court decision. The appeal panel cited in part the French-language version of the Citizenship Act, which refers to children being "born to" a Canadian mother or father. For a child to be "born" to a father, he or she must have a biological link, argued Justice Noel.
In his dissenting opinion, Justice Robert Mainville said the girl clearly qualifies as Mr. Kandola's child, regardless of where her genes originate.
In perhaps the most famous case involving immigration and assisted reproduction, a Canadian couple spent six years in India after it was determined that one of the twins born to a surrogate they hired there was not biologically related to them, and Immigration Canada refused the child entry. The twin was eventually allowed to come here on compassionate grounds.
National Post
But an immigration officer ruled otherwise, and now the Federal Court of Appeal has upheld that decision in a "groundbreaking" case that raises intriguing questions about the intersection between modern fertility treatment and immigration.
Because the embryo used in Ms. Kandola's IVF treatment was made from sperm and eggs donated by others, the child, now four, had no genetic connection to either parent. And without those blood ties, she could not become a citizen by birth, the court concluded in a 2-1 split decision.
It is one of a number of complex immigration scenarios that lawyers say are popping up as Canadians turn increasingly to new technologies and services to build families, often doing so outside of the country.
"It is a very difficult situation right now," said Sergio Karas, a Toronto immigration lawyer who sometimes hears from parents who have hired surrogate mothers overseas. "Science is always running ahead of the law. We now have technologies and ways of doing things that legislators never turned their minds to."
Even the judge who wrote last week's Federal appeal court's majority decision said Parliament should consider developing new legislation to address some of the issues.
Under the current law, for instance, a foreign-born baby with non-Canadian parents would automatically become a citizen merely if the sperm or eggs used in assisted reproduction happened to originate from a Canadian donor, suggested Justice Marc Noel.
The current policy requiring a genetic link also creates "an unequal treatment between children of Canadian citizens depending on the manner in which they were conceived," he wrote.
On the other hand, any child born on Canadian soil is automatically a citizen, even if the parents are not citizens, they used IVF and the sperm and eggs came from donors outside this country, said Michelle Flowerday, a Toronto-based fertility lawyer.
"It's a paradox."
She provided advice to another couple who wanted to have a baby by an American surrogate mother, in the United States, using their sperm and eggs. Because of the blood relationship, Ms. Flowerday concluded that the child would be born Canadian.
Mr. Kandola was not available for comment on the latest case.
Citizenship and Immigration is pleased with the ruling, said Mary Jago, a department spokeswoman. It recognizes that "derivative" or "by descent" citizenship has always been determined "through the bloodline," she said.
Mr. Kandola, a Canadian citizen, married a woman in India and, when they were unable to conceive naturally or with their own genetic material, tried IVF using donor sperm and eggs to create the embryo. Their daughter, Nanakmeet Kaur, arrived in June 2009.
Children born overseas to Canadian parents generally become citizens without question. Immigration officials, though, deemed that Nanakmeet was not Canadian because of the lack of genetic bond.
Her mother eventually was admitted to Canada as a permanent resident and for months the parents took turns flying back to India to look after their daughter, who began experiencing "acute anxiety," said Charles Groos, their B.C. lawyer.
They appealed to the Federal Court, and a judge overturned the immigration officer's ruling, paving the way for the girl to finally come to Canada in January, he said.
The Court of Appeal has now reversed that lower-court decision. The appeal panel cited in part the French-language version of the Citizenship Act, which refers to children being "born to" a Canadian mother or father. For a child to be "born" to a father, he or she must have a biological link, argued Justice Noel.
In his dissenting opinion, Justice Robert Mainville said the girl clearly qualifies as Mr. Kandola's child, regardless of where her genes originate.
It seems likely that Nanakmeet will eventually become a citizen; she is now in Canada as a permanent residentMeanwhile, it seems likely that Nanakmeet will eventually become a citizen; she is now in Canada as a permanent resident and can apply for citizenship in three years, said Mr. Groos.
In perhaps the most famous case involving immigration and assisted reproduction, a Canadian couple spent six years in India after it was determined that one of the twins born to a surrogate they hired there was not biologically related to them, and Immigration Canada refused the child entry. The twin was eventually allowed to come here on compassionate grounds.
National Post
