IVF babies born abroad test the laws on citizenship

Appeal Court enforces rule that child be genetically related to at least one parent

Two cases of children conceived artificially and born overseas are challenging this country’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 through in vitro fertilization using sperm and eggs from anonymous donors and therefore not genetically related to either parent.

In one case, involving a B.C. couple, the embryo was implanted in the woman who hoped to become the mother. In a second case, the embryo was implanted in a surrogate. Both children were born in India.

The B.C. 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 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

There is a risk that this process will be seen as an alternative to adoption that does not require a home study or the involvement of Indian authorities. SIDNEY FRANK CANADIAN OFFICIAL IN NEW DELHI

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 of jus sanguinis 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 immigration officer’s decision in Federal Court.

There, Justice Edmond Blanchard disagreed with the government’s interpretation of the term “parent” in the Citizenship Act to refer only to a blood relative. Blanchard noted that the same 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,” he wrote in a 2013 ruling.

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, he said. He went on to note that had the child been adopted, Canada would have been required, under another section of the Act, to grant citizenship.

“The question, then, is whether she should be subjected to a different treatment on the basis that she is legitimized rather than adopted. In my view ... she should not be.”

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, arguing that the Federal Court had no authority to confer citizenship on that basis.

He also agreed with the government’s argument that the French version of the Act’s clause dealing with hereditary citizenship is more precise than the English version and provides a clear genetic link, using the phrase “née d’un père ou d’une mère” in place of the more ambiguous “parent.”

“The words ‘née d’un père’ presuppose that the father, in this case the respondent’s legal guardian, contributed to the child’s genes as there is no other way in which a child can conceivably be said to be ‘ née d’un père’. In the case of the father, the conclusion that there must be a genetic link seems inescapable.”

Surrey lawyer Charles Groos, who represented the Kandolas, said the couple would have taken the case to the Supreme Court of Canada if they’d had the means.

Kandola applied for citizenship rather than permanent residence for the child in part because it was supposed to be a shorter process, Groos said. 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, he said.

Groos said he understands why the government wants to put questionable cases through the more rigorous family sponsorship process as a safeguard against fraud, but said the Kandolas followed all the rules and had no intention of misleading anyone. Immigration officers 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, which C.I.C. requires in some cases.

“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.”

Internal correspondence from C.I.C. obtained by Vancouver immigration lawyer Richard Kurland shows Canadian officials in New Delhi raised 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. Doing so can fetch a fine of up to $500,000 or a 10-year prison term. These practices are legal in the U.S., but much less expensive in countries such as India.

“If there is a positive decision on this case and future ones like it, there is a risk that this process will be seen as an alternative to adoption that does not require a homestudy or the involvement of Indian authorities,” Sidney Frank, a New Delhi-based C.I.C. immigration program manager, wrote in at October 2013 email. “Anyone who wants a baby and can afford to pay for one can come to India and have one produced. Given the implications, I think it would be very helpful to develop concrete guidelines on how to handle these types of cases before we begin to receive more.”

Citizenship and Immigration Canada spokeswoman Nancy Chan said the government could not share the decision in that case for privacy reasons, but reiterated that a genetic link is necessary in order for hereditary citizenship to be granted.