At least two cases of children conceived artificially and born overseas are challenging Canada’s hereditary citizenship laws, which stipulate that a child must be genetically related to at least one parent to be considered Canadian. The cases involve children who were conceived via in-vitro fertilization (IVF) using sperm and egg from anonymous donors and are therefore not genetically related to either parent.
In one case involving a British Columbia couple, the embryo was implanted in the woman who hoped to become the mother. In another, the embryo was implanted in a surrogate. Both children were born in India.
The BC case became the subject of repeated court challenges after an immigration officer ruled the child, a girl born in 2009, was not eligible for citizenship through descent because she had no genetic relationship to her Punjabi-origin Canadian father, Malkiat Kandola. He was applying to sponsor his wife as a permanent resident when the child, Nanakmeet, was born.
“For the purposes of determining citizenship by birth outside Canada to a Canadian parent (derivative citizenship), Canadian law relies on evidence of a blood connection (or genetic link) between parent and child which can be proven by DNA testing,” the immigration officer explained in a letter to Kandola.
“This principle ... has deep historical roots both in Canada and internationally, and it is evident from the legislative history of the [Act] that Parliament has always intended the term ‘parent’ to refer to genetic parents for derivative citizenship purposes.”
Kandola successfully challenged the officer’s decision in a federal court, which disagreed with the government’s interpretation of the term ‘parent’. It noted that the Citizenship Act defines ‘child’ to include “a child adopted or legitimized in accordance with the law of the place where the adoption or legitimating took place”.
Kandola and his wife are listed as parents on the child’s Indian birth certificate, making adoption impossible and legitimizing the child under Indian law, it said, and went on to note that, had the child been adopted, Canada would have been required to grant citizenship.
Citizenship and Immigration Canada appealed that decision, and in a 2-1 ruling, the federal court of appeal overturned Blanchard’s ruling and sided with the government last year. The part of the Act that confers hereditary citizenship makes no reference to legitimacy, justice Marc Noël wrote for the majority verdict, arguing that the federal court had no authority to confer citizenship on that basis.
Kandola was eventually forced to sponsor the child as a family member, but it took almost five years and divided the family over two continents, causing anxiety for the child, said Surrey lawyer Charles Groos, who represented the Kandolas.
He added that the couple would have taken the case to the Supreme Court of Canada if they’d had the means. Kandola had applied for citizenship rather than permanent residence for the child in part because it was supposed to be a shorter process.
Immigration officers had learned of the situation through the sponsorship application process for Kandola’s wife, who was visibly pregnant. She was upfront about the couple’s situation and the absence of a genetic link to the child, later confirmed through a DNA test.
“Her bad luck was that she gave birth … before she’d been issued a visa and could come to Canada. If they had just been a little bit quicker in issuing her a visa, she would have gotten on the plane and the baby would have been born here,” said the lawyer.
Internal correspondence from CIC obtained by Vancouver immigration lawyer Richard Kurland shows Canadian officials in New Delhi raised red flags about a similar case in 2013.
In that case, a child was artificially conceived using a donated egg and sperm, then implanted in a surrogate who was paid by a Canadian couple to carry the child in India.
In Canada it is illegal under the Assisted Human Reproduction Act to pay for donated sperm, eggs, or the services of a surrogate. These practices are legal in the US, but much less expensive in countries such as India.
Courtesy: Vancouver Sun via vancouverdes.com