Canadian citizenship and the challenges of birth tourism

2018/11/14 2 Comments

A relatively neutral legal brief on birthright citizenship, noting that a proportionate response would likely not include ending birthright citizenship (but no mention of the Australian approach of qualified birthright citizenship). Stay tuned for my take:

The president of the United States recently indicated that he was preparing an executive order to end birthright citizenship in the U.S.  President Trump said that the United States was the “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.”

In fact, the U.S. is not the only country in the world that grants birthright citizenship. Canada, Mexico and about 30 other countries grant citizenship to babies born in the country. Canadian citizenship can be acquired by birth pursuant to jus soli — “law of the soil,” which is codified in s. 3(1)(a) of the Citizenship Act.

Over the years, there have been calls to end birthright citizenship or limiting it to those born to at least one Canadian citizen or permanent resident parent because of a rising fear of “birth tourism.” Birth tourism is where pregnant visitors or non-residents give birth in Canada so that their babies can automatically be Canadian citizens.

It has been reported that there are a number of birthing hotels or baby houses in British Columbia where pregnant women pay thousands of dollars to come give birth in Canada so that their babies could be Canadian citizens by birth. Section 179 of the Immigration and Refugee Protection Regulationspermits visitors to travel to Canada, including pregnant women. Immigration Refugees and Citizenship Canada (IRCC) publishes its own instructions and guidelines clarifying that “there is no provision in the IRPA to refuse a temporary resident visa (TRV) solely on the basis of the intent of the applicant to give birth in Canada.”

Opponents view birth tourism as an abuse or loophole of Canadian immigration and citizenship laws. They see this as a way for some wealthy foreigners to “game” the system and buy Canadian passports for their babies. An extreme view is that it is an immigration fraud giving a way for people to jump the queue. It is often argued that the practice erodes the value of Canadian citizenship.

There is also concern that birth tourism is costly to taxpayers because it allows Canadian-born children access to publicly subsidized education, health care and social security programs, all without necessarily contributing to the funding of these systems and programs by paying taxes. Moreover, there is no obligation under international law to automatically give citizenship to babies born in Canada. Countries including Ireland, Australia and the United Kingdom have either eliminated or have limited birthright citizenship over the years.

Proponents of preserving birthright citizenship argue that the principles of jus soli are part of our national identity and embodies the idea that every child born in Canada is equal. Eliminating birthright citizenship would impose additional public expenses and complicate the process for verifying citizenship and risks having two-tiered citizenship.

It would be an expensive undertaking to develop and maintain a new verification system for a localized phenomenon or “problem” that may not be prevalent or widespread at all. Indeed, Statistics Canada data reports that there were 385 babies born in 2017 to mothers whose place of residence was outside Canada. While these numbers are most likely under reported and do not tell the whole story, it does underline that this issue of birth tourism may be a hyperbole.

The benefits of Canadian citizenship to the newborn child may be immediate, but for the parents, there is no guaranteed path to permanent residency or citizenship by virtue of their Canadian-born child. Having a Canadian-born child does not necessarily allow someone to be prioritized for permanent residence status or citizenship. Canadian-born children may eventually sponsor their parents, but sponsors must meet age and income requirements before becoming eligible sponsors.

Having Canadian-born children may provide the child with opportunities attributed to the benefits of citizenship rather than being a backdoor to Canada for parents. These babies may grow up to be assets to Canada and contribute to Canadian culture, society and the economy. Any immigration benefits to the parents may be decades down the road when the Canadian babies become adults and can sponsor their parents.

It must be remembered that there are limitations to jus soli. Under s. 3(2) of the Citizenship Act, children born in Canada to foreign diplomats, consular officers or representatives of a foreign government or international organization or their employees in Canada are not Canadian citizens despite being born in Canada.

The Supreme Court of Canada will hear the case of Minister of Citizenship and Immigration v. Alexander Vavilov [2016] 2 F.C.R. 39 in December. The court will determine issues of standard of review and also weigh in on the question of whether diplomatic immunity is required to trigger s. 3(2)(a) of the Citizenship Act. The Vavilov brothers are Canadian-born but were stripped of their Canadian citizenship after it was discovered that their parents were Russian spies. The parents were deemed to be “representatives or employees of a foreign government” at the time of their birth. As such, the brothers were not eligible for Canadian citizenship by birth pursuant to s. 3(2)(a).

While birthright citizenship in the United States is a constitutional right and amendments thereof would be subject to a constitutional process, in Canada, birthright citizenship is codified in the Citizenship Act which can be amended by an act of Parliament. The question is whether Canadian laws should be amended to limit or eliminate birthright citizenship or whether policy and regulations could be implemented to curb the practice of birth tourism at the local level.

The proportionate response to birth tourism may not necessarily require a complete end to jus soli.

Kelly Goldthorpe is an immigration lawyer at Green and Spiegel LLP and Caroline Mok is an articling student at the firm.
 

Source: Canadian citizenship and the challenges of birth tourism

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ICYMI: The Intellectual Origins of Trump’s Chilling Immigration Plan

2018/11/10 Leave a comment

Worth reading:

Hunched forward in his chair, his fingertips and thumbs forming a familiar diamond shape, Donald Trump seemed to anticipate the question that Axios’s Jonathan Swan was about to ask him. “On immigration, some legal scholars believe you can get rid of birthright citizenship without changing the Constitution—” Swan began, before Trump cut him off gingerly. “With an executive order,” he interjected. “Exactly,” Swan replied. “Have you thought about that?” The president didn’t miss a beat. “Yes.”

The video teaser of the interview, which will appear in Axios’s forthcoming documentary news series on HBO, erupted in the middle of a news cycle driven by Trump’s inflammatory comments regarding immigration—his decision to dispatch the military to the U.S.-Mexico border, relentless fear-mongering over a migrant caravan of Central American “invaders,” and a white-supremacist terror attack inspired by Jewish aid for refugees. Trump, who is presiding over a midterm election next week that could determine control of the House, has been betting that a hard-line message on immigration will drive G.O.P. turnout. Yet even for a party that has largely aligned itself with the president’s nationalist rhetoric, what Trump proposed was radical and largely without precedent. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” the president continued in his conversation with Swan. “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.” His subsequent claim—that the U.S. is the only country that bestows citizenship upon anyone born within its jurisdiction—was false, but the racial anxiety he was tapping into is real. “[A] person comes in, has a baby, and the baby is essentially a citizen of the United States . . . with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”

The idea of revoking birthright citizenship has wended its way through Washington for years. Democrat Harry Reid, former Senate Majority Leader, proposed revoking birthright citizenship in 1993, before repeatedly apologizing for it. (“I didn’t understand the issue. I’m embarrassed that I made such a proposal,” he told the Las Vegas Review-Journal.) On the right, fear of “anchor babies” has been exploited politically by even moderates such as Jeb Bush, who invoked the issue in 2015. But Trump’s decisive claim that he could get end birthright citizenship with the stroke of a pen caused critics to drop their jaws. “He obviously cannot do that,” said House Speaker Paul Ryan, noting the intractable reality: birthright citizenship has been enshrined in the 14th Amendment for 150 years and would require no less than an act of Congress or a Supreme Court challenge to knock it down, an endeavor the vast majority of legal scholars consider impossible.

Regardless of whether it is a midterm stunt, Trump’s fever dream has very real origins in the scholarship of the Claremont Institute, a right-wing think tank based in Southern California—the front line, incidentally, of illegal border crossings. The current legal argument for revoking birthright citizenship, which had percolated on the left and right in the 90s, began gaining traction in 2006, when John C. Eastman, a Claremont Institute affiliate who is a professor at Chapman University’s Fowler School of Law, published an article for the Heritage Foundation laying out a three-point argument to challenge the authority of birthright citizenship. First, according to Eastman, at the time of the 1866 Civil Rights Act, children born to foreigners were “not entitled to claim the birthright citizenship” provided by the act. Since the Act eventually became the backbone of the 14th Amendment, therefore, the original interpretation of citizenship should take precedence. Second, he argued the reading of the 14th Amendment—that birthright citizenship can be bestowed upon anyone who is “subject to the jurisdiction” of the United States—was overbroad; in Eastman’s reading, citizenship can only be bestowed upon people with “total and exclusive allegiance” to the country. If a child’s parents had not pledged fealty to America, either by becoming full citizens or establishing permanent residence, their loyalty to the Constitution would, by all definitions, be as temporary as that of their parents. (The common legal interpretation of ”subject to the jurisdiction” is that anyone who enters the country, no matter how briefly, are subject to U.S. laws.) Finally, he wrote, the policy was a medieval remnant inconsistent with the Founding and the notion that Americans need consent to be governed: “This consent must be present, either explicitly or tacitly, not just in the formation of the government, but also in the ongoing decision whether to embrace others within the social compact of the particular people.”

The next year, Edward J. Erler, a Claremont scholar and one of the original thinkers on birthright issues, published a bookwith two colleagues examining what reviewer and Hoover Institution fellow Victor Davis Hanson deemed the problem of “massive illegal immigration from Mexico” for the American identity: “How did the founders and their successors deal with problems of being an American, and what are the effects of massive noncompliance with the laws of the United States?” Apart from several additional treatises they published, however, the idea never caught on with the rest of the conservative legal community. “It’s certainly in the idea of originalism, in that it relies that you understand the text at the time it was written, [but] there are a lot of people, even in that broadly conservative camp, that just reject it,” said Corey Brettschneider,professor of political science and public policy at Brown University, and the recent author of The Oath and the Office: A Guide to the Constitution for Future Presidents. “There are a couple of scholars that are pushing it, but it’s not a mainstream view even in conservative circles. That’s because it’s kind of wacky.”

Over time, Eastman and Erler’s legal arguments were adopted in Washington as part of various efforts to curb illegal immigration. In 2010, a small group of Republican senators, including Jeff Sessions, Mitch McConnell, and John McCain, floated the idea of holding hearings on the issue; Wisconsin Governor Scott Walker proposed a similar plan in 2015. Most conservative figures in Congress, to say nothing of the pro-immigration donor class, balked. But when Trump launched his unconventional, nativist-pandering campaign, legal birthrightists held out hope that he could indeed become their political vessel to revoke the law. “Political pundits believe that Trump should not press such divisive issues as immigration and citizenship. It is clear, however, that he has struck a popular chord—and touched an important issue that should be debated no matter how divisive,” Erler wrote in National Review in August 2015. At the same time, Erler acknowledged foreseeable roadblocks. “Republicans want cheap and exploitable labor and Democrats want future voters,” he said.

By early 2016, Stephen Miller was forcefully pushing for an end to the birthright privilege, calling it the linchpin in the administration’s immigration policies. “Birthright citizenship really is the ultimate magnet for illegal immigration,” he told the Daily Caller that February, outlining the traditional conservative fears of chain migration, anchor children, and the decreased likelihood of deportation. “[It’s] an open, worldwide invitation to ignore America’s immigration laws and an absolute perversion, misinterpretation, misapplication of the 14th Amendment.” Miller then suggested that Trump could do it more easily than the media or legal scholars imagined: “You could do it through a variety of different means, whether it be legislatively, whether it be through potential guidance that’s issued.”

According to Axios, the Trump administration had been quietly working on this policy for months, and Trump himself was surprised that Swan brought it up in their interview. (“I didn’t think anybody knew that but me. I thought I was the only one.”) But the revelation of the plan—only weeks away from the midterm election, and in the middle of Trump’s furious posturing on the migrant caravan winding its way to the southern border—immediately won plaudits among several of Trump’s allies, with Lindsey Graham announcing that he was completely on board. More sober-minded Republicans told Politico that they opposed Trump taking action via executive order, and would perhaps try to tailor the breadth of the amendment’s application in Congress. Nevertheless, ending birthright citizenship unilaterally, they concurred, was a bad idea. “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process,” said Ryan. “But where we obviously totally agree with the president is getting at the root issue here, which is unchecked illegal immigration.”

The Talmudic ponderings of Congress, however, may be less important than the energy this will automatically inject into the election—not just for Democrats enraged about Trump’s treatment of illegal immigrants, but also for conservatives prioritizing border control. Indeed, if a talk Erler delivered in April at Hillsdale College is any indication, birthright citizenship is only one facet of the great threat of political correctness, progressive equalization, and the horrors of plurality looming over the American experiment. “Greater diversity means inevitably that we have less in common, and the more we encourage diversity the less we honor the common good,” he said at the time, calling multiculturalism “a solvent that dissolves the unity and cohesiveness of a nation.” He condemned Republicans for caving so quickly to any accusations of racism, sexism, classism, and homophobia. “Only President Trump seems undeterred by the tyrannous threat that rests at the core of political correctness,” he explained.

Source: The Intellectual Origins of Trump’s Chilling Immigration Plan

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Myths about shared culture have no place in the citizenship debate: Kenan Malik

2018/11/05 Leave a comment

Interesting and valid reflections that culture has never. been as monolithic as some immigration critics, looking back with nostalgia, imagine:

What links Mike Leigh’s new film, Peterloo, to Donald Trump’s threat to deprive children born to undocumented migrants of the right to US citizenship? It might seem an odd question, best left to Only Connect fans. But answering it helps give an insight into some of the ways we think about immigration and citizenship.

Trump wants to restrict the scope of the 14th amendment, which guarantees citizenship to anyone born on US soil. It’s the latest move in a long history of attacks on “birthright citizenship”, a history defined by a desire to create fears about an “alien” presence and to cast some Americans as not truly belonging to the nation.

There is more to the debate, however, than fearmongering. It speaks to wider questions about the nature of citizenship and of national belonging. It has resonance on this side of the Atlantic too.

The United States, according to Trump, is the only nation “stupid” enough to permit birthright citizenship. In fact, virtually every country in the Americas does so. But not one in Europe. Yet this is not a New World/Old World divide. The roots of both birthright citizenship and opposition to it lie in Europe.

Two broad approaches to citizenship are formally labelled jus soli and jus sanguinis. Jus soli (right of the soil) is the right to citizenship of anyone born in a country. Jus sanguinis (right of blood) defines citizenship as an inheritance through one or both parents, who themselves need be citizens. What Americans call birthright citizenship is jus soli (though both forms of citizenship can be a birthright, automatically conferred at birth).

The distinction between the two has traditionally been seen as that between French and German conceptions of citizenship. The French republican tradition views citizenship from a universalist perspective, without regard for ethnicity or culture. German nationalism draws upon Romantic ideas of the Volk, rooted in a specific history, culture and race.

The reality is more complicated. For a start, the US concept of birthright citizenship derives not from French republicanism but from English common law. More importantly, jus soli and jus sanguinis have long been intertwined in policy. France introduced in the 19th century a “blood” element to citizenship: only those born in France with a French parent are automatically granted citizenship at birth.

In Britain, the 1981 Nationality Act restricted automatic citizenship at birth to those at least one of whose parents was British or had permanent residency rights.

In both countries, wariness about jus soli was driven by the sense that certain groups were incompatible with the nation. In the 19th century, Jews were cast as the unassimilable “other”. More recently, North Africans or West Indians were given that role. Today, it’s often Muslims.

Today, too, such fears have been recast in the debate about populism and social fragmentation. The philosopher Michael Walzer, influential in communitarian and postliberal circles, argues that in the past there existed an organic relationship between the political community and the cultural community. This allowed for “language, history and culture [to] come together… to produce a collective consciousness” and “a world of common meanings”.

Immigration has served to disrupt this, making societies seem more fragmented. For nations to flourish, Walzer insists, they must regulate immigration and citizenship so as to protect their historical and cultural integrity.

The lesson that some, such as the academic Eric Kaufmann, draw from this is the need to employ racial and cultural criteria in selecting immigrants. There is nothing racist, Kaufmann insists, in an immigration policy that seeks to maintain the “white share of the population”. It is a pragmatic response to assuage social anxiety and protect cultural integrity. Fear of populism and the triumph of identity politics have transformed what we imagine is racist.

Enter Peterloo. Leigh’s austere, harrowing portrayal of working-class struggles for democracy does not touch upon the question of immigration. In exposing the fractures of 19th-century Britain, however, it exposes, too, the myth that, until disrupted by immigration, nations existed as organic political and cultural communities defined by a “collective consciousness”. Societies have always ruptured along class, religious, cultural and ideological lines. From the English Civil War to the anti-slavery struggles to the suffragettes to the miners’ strike British history is one of contestation. As is that of all countries. Obsession with immigration has made us blind to that history.

On neither side of the Atlantic will it help in thinking about charged issues around immigration and citizenship to cling to historical myths or be blinkered to the consequences of our answers.

Source: https://www.theguardian.com/commentisfree/2018/nov/04/myths-cultural-integrity-no-place-immigration-debate

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Canada needs an honest debate about birthright citizenship: Konrad Yakabuski

2018/11/02 1 Comment

Good balanced piece by Yakabuski ahead of the government’s response to the petition by Steveston—Richmond East MP Peschisolido (Yet another petition on birth tourism).

I am working on an analysis of the numbers based upon hospital financial data for non-residents (includes some other temporary residents and Canadian expatriates) – stayed tuned:

No one was surprised to learn that Donald Trump was wrong when he declared that the United States is “the only country in the world” that grants birthright citizenship. The U.S. President rarely lets the facts get in the way of an opportunity to score political points on the backs of immigrants.

Unsurprisingly, he was also wrong in suggesting he could revoke U.S. birthright citizenship, which is entrenched in the U.S. Constitution, with the simple stroke of his own pen. But on the eve of midterm elections that will determine control of the U.S. Congress, stoking outrage toward illegal immigrants who give birth on American soil is par for the course for Mr. Trump.

Unfortunately for Canada’s Conservatives, who adopted a resolution at their August convention calling for an end to “birth tourism” in this country, Mr. Trump’s outburst now risks tainting our own debate about birthright citizenship. Even before the U.S. President evoked ending birthright citizenship in his country, opponents seized on the passage of the Tory resolution to score points of their own. New Democratic Leader Jagmeet Singh attacked the “division and hate” peddled by Conservatives. Prime Minister Justin Trudeau’s principal secretary, Gerald Butts, accused the Tories of seeking to “strip people born in Canada” of their Canadian passports.

To be clear, any attempt by the Conservatives to scapegoat certain immigrants for political gain should be condemned. But so should Liberal and NDP attempts to tar the Tories with labels they don’t deserve merely for raising concerns about a phenomenon that undermines the integrity of our immigration laws. Birth tourism, the practice of foreign women coming to Canada to have their babies merely to obtain a Canadian passport for their offspring, is by all accounts a real and growing problem. Is it a big enough problem to warrant an end to birthright citizenship here? Unfortunately, we don’t have good enough data to know. Statistics Canada data on births to non-resident mothers provide an incomplete picture and conflict with evidence reported by hospitals.

In the United States, birthright citizenship emerged as a constitutional principle in the wake of the U.S. Civil War to ensure that freed slaves were entitled to all the rights and privileges of white citizens. It is rooted, hence, in that country’s long struggle against slavery and racial discrimination. Any attempt to deprive those born on American soil of U.S. citizenship would not only require a near-impossible constitutional amendment, it would needlessly reopen old wounds.

In Canada, the issue is not nearly as fraught with symbolism as it is south of the border. Birthright citizenship is a feature of our immigration law, not the Constitution, and can be changed with an act of Parliament. What’s more, federal lawyers recently argued that Canadian citizenship could not be claimed by the Canadian-born children of Russian spies, insisting that even this Liberal government believes the principle of birthright citizenship has its limits.

In most cases, foreigners who travel to Canada to give birth are not desperate, nor are their children at risk of becoming stateless, since they would inherit their parents’ citizenship, anyway. Most appear willing to pay hefty non-resident medical fees to have their babies delivered at Canadian hospitals or stay at for-profit “birth houses” catering to Chinese tourists.

Canada would not be the first country to end birthright citizenship, in part to end the practice of birth tourism. Several developed countries, including Australia, have done so in recent decades. As Canada becomes one of the last “rich” countries outside of the United States to grant automatic citizenship to those born on its soil, we should expect the incidence of birth tourism to increase in the future. That suggests we need to be prepared to have this debate, sooner or later.

The August Conservative resolution called for legislation to eliminate birthright citizenship “unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.” Leader Andrew Scheer insisted the policy was aimed strictly at ending “abuse” of our immigration laws, adding: “Conservatives recognize that there are many Canadians who have been born in Canada by parents who have come here to stay and have contributed greatly to our country. I will not end the core policy that facilitates this.”

It would be premature to change our immigration laws before we evaluate alternatives, such as stricter visa requirements, to prevent birth tourism. Ottawa also needs to collect better data to determine the scope of the problem. But we should not let the spectre of Mr. Trump stop us from having a debate about our immigration laws that, if we wait too long, could become inevitable.

Source: Canada needs an honest debate about birthright citizenship: Konrad Yakabuski

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No plans to change citizenship laws for children born in Ireland to foreign parents, says Justice Minister

2018/10/24 Leave a comment

Consistent with most of Europe:

There are no plans to change citizenship laws for children born in Ireland to foreign parents.

Justice Minister Charlie Flanagan says the current rules that someone born here to foreign parents does not get automatic citizenship were approved by a majority of people in a 2004 referendum.

It follows the case of a Co Wicklow nine-year-old who faces deportation to China after being born and raised here.

Eric Zhi Ying Xue, who is in 4th class in St Cronan’s school in Bray, was born and has lived all his life in Ireland.

His mother has had her application to remain in the State rejected.

Justice Minister Charlie Flanagan says the government won’t be taking another look at the laws around deportation orders.

“I see no plans,” said Mr Flanagan. “I have no plans at present to revisit the 27th Amendment of Bunreacht na hÉireann which was passed by an overwhelming majority of the people back in 2004.

“The changes made to the legislation after the referendum, these were put through the Dáil and the Seanad at the time.

“What they did do, was to bring Ireland into line with the vast majority of states across the European Union.”

Source: No plans to change citizenship laws for children born in Ireland to foreign parents, says Justice Minister

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A Suicidal Nanny, an Underground Industry and 3 Babies Stabbed (New York City)

2018/10/13 Leave a comment

Gripping and horrific reporting of some low-cost birth hotels in Queen’s. Haven’t heard of comparable horror stories from Richmond birth hotels:

Dark circles formed like warning signs beneath Yu Fen Wang’s eyes as she worked 12-hour graveyard shifts in a Queens maternity center that operated on the margins of legality. Her family said she had grown gaunt, could not sleep and told her husband she no longer wanted to live.

Her employers, however, said they needed her to work. And her family needed the money. She earned less than $100 a day, they said, working in a private house that had been converted into a combined nursery and hotel for newborn babies and their mothers.

An open secret in the Flushing community, the center was part of an underground industry catering to a demanding clientele: local mothers resting after childbirth and Chinese visitors coming to have their babies in the United States, a practice known as “birth tourism.”

On Sept. 21, at 3:40 a.m., these dangers collided to near-fatal effect when, the police say, Mrs. Wang stabbed three babies sleeping in bassinets on the first floor — all girls — and two adults. She then turned the knife on her own neck and wrists.

The victims all survived. But the horrific act turned a spotlight on a pocket of immigrant New York, where a loose network of businesses tend to mothers and infants in the crucial, fragile month after childbirth but operate without any government oversight. The center, Mei Xin Care, is one of dozens in the area that vary widely in amenities and quality, leaving workers with few avenues for complaint, and families with little to guide them other than word of mouth, internet advertisements and blind trust.

“There are victims at all sides of the spectrum,” said Assemblyman Ron Kim, a Democrat who represents Queens.

Centers like this one — which was alternately known as Mei Bao, or “beautiful baby” in Chinese — provide two services. The first is for newly-arrived immigrant mothers practicing a Chinese tradition some 1,000 years old in which they recuperate for a month after childbirth while other women, often called “aunties,” care for their infants. Authorities said the centers also provide assistance to women from China who wish to give birth in the United States in order to obtain instant citizenship for their children, which is legal under immigration law.

There are some 40 such maternity centers — in private homes and apartments — advertising their services online in the New York and New Jersey area, and nearly 20 in the Flushing neighborhood.

At Mei Xin Care, employees were paid off the books, Mrs. Wang’s family said. One of its nannies, Darong Wang, 63, got the job despite being arrested in May for promoting prostitution at a massage parlor in downtown Flushing. She was slashed in the attack, requiring 20 stitches on her face; a father of one of the children was stabbed in the leg and wrist.

The crime took place in a three-floor brick apartment house with white metal lattice balconies on the outskirts of Flushing. Its only advertisement existed on the internet, on a Craigslist of sorts for the local Chinese immigrant community.

Mei Xin Care appears to be a combination of the names of two owners: Meiying Gao and Xuexin Lin. Local employment agencies said the owners had been in the business for about a decade but opened their latest location in 2016, when city records show they bought the building for $1.5 million. Reached by phone, the owners declined to comment.

One neighbor said in an interview that she saw a steady stream of clients arriving, sometimes in fancy cars.

Some of them would have been following the custom of a monthlong rest after childbirth. The period culminates in a “red egg celebration” to mark the baby’s survival of its fragile first weeks, said Margaret M. Chin, a professor of sociology in the Asian American Studies program at Hunter College.

The centers are an alternative to obtaining visas so family members can fly to the United States, or returning to China, where health care is often less sophisticated. For several thousand dollars, new mothers have access to 24-hour nannies and cooks.

Michael Cheng and his Shanghai-born wife, who live in Flushing, considered using the center for her recuperation period. They toured the facility twice in the spring and were quoted a fee of $4,800 — in cash.

Mr. Cheng said babies were sleeping on the first floor, while their mothers slept in small bedrooms on the second and third floors.

He remembered seeing five to six workers, whom he estimated to be in their 40s and 50s. “They were working 24 hours in shifts,” he said. “I can imagine that it was a very high-stress job.”

Mr. Cheng said his wife, who did not want to give her name, spoke with some of the residents on the upper floors, one from China and another who was a New Yorker. “Before we walked out, I was like, ‘Are you sure you like this place?’ to my wife,” Mr. Cheng said in an interview. “To me, it felt stuffy in there.”

He was skeptical and asked to see a license. The owners sent a copy of a generic business operation certificate and another for maternity nutrition.

“In hindsight,” he said, “if there was more talk about these places, and people knew if you go to one of these centers that they had to hang their licenses right out in front, some kind of regulations around that, maybe it would help.”

Ultimately, the couple felt uneasy about Mei Xin Care and opted to spend the month at Mr. Cheng’s parents’ home on Long Island after their daughter was born. They got their $800 deposit back when another mother quickly filled the spot.

After the stabbings occurred, Flushing was in an uproar. At temples, in food courts and on the streets beneath bright signs in Chinese, residents worried that the incident would stir up anti-immigrant attitudes toward their community.

Others decried the center’s second purpose, easing the path for birth tourism. “They should not come through loopholes,” said Catherine Chan, 50, a bar owner in Queens who used to work on Wall Street. She came to the United States from China when she was 6, after a long process involving family sponsorship, she said. “There is no shortcut.”

Birth tourism is a well-known phenomenon. In recent years, it has drawn mostly well-off mothers from China, Korea, Russia, Turkey, Egypt and Nigeria to the United States for birthright citizenship, which President Trump has vowed to eliminate.

It can be legal, as long as pregnant foreigners applying for visas state their intention to give birth when they are in the United States and prove that they can cover the cost. If they conceal their real purpose for traveling they could be subject to visa fraud.

Once United States citizens turn 21, they are eligible to sponsor a parent for a green card, giving their parents the option of eventually settling there. Parents do not always use that opportunity, and immigration officials could deny a green card, claiming the parents had willingly defrauded the American government.

Many are more concerned about securing the future of their children who, as American citizens, have the option of schooling in the United States or in competitive private Chinese schools that have lower entry standards for foreign students. They can travel to other countries without having to apply for a visa. It is seen as a status symbol in China.

For Chinese birth tourists, Los Angeles is the marquee destination. Centers compete with each other by advertising stays at plush hotels, shopping extravaganzas in nearby malls, and state-of-the-art hospitals. Fees can range from $50,000 to $80,000.

In 2015, immigration enforcement authorities raided the Los Angeles centers, saying owners had avoided paying taxes.

Still, the raids did not deter business owners who saw an opportunity. As Chinese internet services like Weibo and WeChat expanded, so did advertisements for birth tourism services in New York.

In the New York metropolitan area, more upscale maternity centers tend to exist in New Jersey and Long Island suburbs. The ones in Flushing appear to be smaller, and less expensive, options, where mothers stay in rooms that often have been subdivided.

Annie Gao, the owner of one upscale birth center in Center Moriches, on Long Island, expressed disdain for the cramped and somewhat secretive operations of the Flushing centers.

Ms. Gao, who opened her center in Flushing in 2004, said that several years ago she tried to convince other owners to join an association that could self-regulate and keep out cut-rate, potentially unsafe, centers. Ms. Gao thought that some centers skimped on food quality and cleaning services, noting that ones she had seen looked “dirty.”

An advertisement for Mei Xin Care, also known as Mei Bao, claims the center has been legally registered for more than 10 years and provides five meals a day to new mothers.Credit

But those owners disagreed, she said.

These centers elude city and state licensing categories and zoning codes. They do not qualify as day care centers because mothers are on-site; they do not need a medical license because owners offer Chinese nutritional practices.

“There isn’t a real category for these type of activities, and they were able to leverage it and apply for a general business license and pretend that was O.K. for their clients,” Mr. Kim, the assemblyman, said.

Although neighbors of Mei Xin Care filed complaints that it was operating as a hotel, city buildings inspectors were denied access three times, which automatically closes the complaint. Neighbors can file an affidavit to warrant a full inspection, but city records show that did not happen.

The state Office of Child and Family Services, the city’s administration for Children’s Services, the state Department of Health and the city Department of Health all said such centers did not fall under their purview.

The police shut down Mei Xin Care after the stabbing, but less than three weeks later, the center seemed to have reopened. Women could be seen through the windows, and a pile of diapers sat outside…

Source: A Suicidal Nanny, an Underground Industry and 3 Babies Stabbed

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How Canada became an international surrogacy destination [another form of birth tourism]

2018/10/09 Leave a comment

Just as I am working on my article on birth tourism, another example of “reproductive tourism” emerges.

The same issues larger apply in terms of abuse of birthright citizenship.

In addition, given that Canadian surrogate mothers use Canadian healthcare, there is an effective subsidy to foreign parents engaging a Canadian surrogate. Not right (and appears Canada is one of the few countries that allows intended parents living outside the country.

Hard to understand the rationale for continuing this other form of birth tourism:

Here’s an arresting statistic: Almost half of the babies born to Canadian surrogates in the province of British Columbia in 2016 and 2017 were for intended parents who lived outside the country. That’s 45 of the 102 babies born to surrogates there – 44 per cent.

What’s the national tally on such outbound babies? We don’t know. Rather, we aren’t told. The number could presumably be calculated, since individual physicians carry out the procedures and bill for them, and provinces issue birth certificates. But the information is not publicly available. Then again, we should hardly be surprised: In Canada, we don’t even know the total number of babies born to surrogates for any parent, Canadian or otherwise. I and others have been asking around for some time now.

Those B.C. numbers come to us thanks to the hard work of Pamela White, at the Kent Law School in Britain, who had to put in an access to information request with the B.C. government. She tried the province of Ontario, too, but they said they don’t collect data on residency. In the United States, such information is collected by law and published by the Centers for Disease Control and Prevention.

Prof. White, a former Statistics Canada director and data analyst, argues that Canadians deserve that level of transparency, too. She is absolutely right. Without real data, available for scrutiny, how can we make informed public policy decisions? We can’t.

Anecdotal reports and incomplete data suggest that the number of intended parents (IPs) from outside Canada has been growing in recent years. At the annual meeting of the Canadian Fertility & Andrology Society (CFAS) last month, Karen Busby, a professor in the faculty of law at the University of Manitoba, who co-authored a forthcoming paper on the topic with Prof. White, discussed why Canada is becoming an international surrogacy magnet and whether it is desirable.

The backdrop, Prof. Busby says, is that worldwide demand is huge. Many people want to be parents and can’t do so without surrogacy, but they live in countries where surrogacy is either prohibited entirely, or prohibited for them. China, Japan and many European and predominantly Muslim countries have restrictions, she says. People in such places who decide to pursue surrogacy must look beyond their own borders.

Coupled with this growing demand is shrinking supply. In the last few years, India, Nepal, Thailand and Mexico – former international surrogacy hotspots – have closed their doors to non-residents.

So why Canada? For one thing, Prof. Busby says, Canada is one of the few jurisdictions left in the world that both allows surrogacy and allows foreign participation in it. Countries such as Britain, South Africa and Israel, she says, permit surrogacy, but not for foreigners. The only other places that allow foreigners to access surrogacy within their borders, apart from a couple of completely unregulated jurisdictions, are Greece, Ukraine, Russia, Georgia and a few U.S. states.

For a number of reasons, Canada stacks up well against these others. Russia and Ukraine, for instance, only allow married heterosexual couples to participate. Canada, by contrast, does not allow discrimination on the basis of marital status or sexual orientation, Prof. Busby says.

Canada is also fairly efficient about granting legal parental rights. It varies by province, but generally speaking, IPs can be declared legal parents without a lot of hassle in just a few days, and they can be issued a birth certificate within weeks. Also, any child born in Canada has the right to citizenship, so a passport can be issued, and in short order, the families can head home and start their new lives.

Financially, Canada also compares well. Women in Canada enjoy high quality, publicly funded health care throughout the pregnancy, during the delivery and after the birth. This is as true for a woman carrying a baby for someone from France or China as it is for a woman carrying a baby for herself. Our neonatal care is also top-notch – and also publicly funded. Another perk, Prof. Busby says, is that if a Canadian surrogate has a job, then she may also qualify for employment insurance benefits following birth – to a maximum of $6,500.

Here’s another interesting twist. In Canada, it’s illegal – a criminal offence, according to the Assisted Human Reproduction Act – to pay a woman to carry a baby for you, or to pay someone else to arrange for her to do so. Since the law first passed in 2004, this prohibition has caused enormous hand-wringing for Canadian would-be parents looking to form their families with the help of a surrogate. They rightly fear that they could be prosecuted for paying a surrogate, and the penalty is steep: up to 10 years in prison and $500,000 in fines. The prohibition has reportedly driven some Canadian families to leave the country to seek surrogates elsewhere.

Ironically, this prohibition, which was designed to deter commercial surrogacy, may actually be stimulating it – and may favour foreign IPs over domestic ones. Domestic IPs may be reluctant to offer money or will only offer it under the table, but because the law is not applied to acts committed outside the country, Prof. Busby says, foreign IPs can offer money openly, so long as it changes hands somewhere else. It’s conceivable that, given the choice between being paid and not being paid, Canadian surrogates – who are legally allowed to accept the money – may opt to be paid. So foreign IPs may actually be more attractive to Canadian surrogates than domestic IPs. (There’s no data on that, of course, since there’s no data.)

It is true that foreign IPs coming to Canada will still be subject to our other prohibitions, such as paying for local egg or sperm donations or performing sex selection. But, as Prof. Busby points out, most Canadians live near the U.S. border and have easy access to the services offered there. This ability to enjoy the best of both systems only adds to Canada’s appeal.

All of these factors help to explain why Canada has become a go-to place for surrogacy. I’ll add one more that Prof. Busby did not explicitly mention: There are Canadian doctors, lawyers and agencies who actively recruit IPs from around the world. If foreign parents weren’t already aware of Canada’s considerable merits, representatives of the industry are more than happy to point them out. In fact, the newly minted president of the CFAS himself, alongside the CEO of the country’s top surrogacy agency, was recently in London, promoting Canada as a premier surrogacy destination.

And they are right: For all of the above reasons, Canada is a great place to do surrogacy. Loads of people already want to come here and we can only expect that number will grow.

Not everything about this picture is rosy, however. A big question is whether Canadians need to think about recovering medical costs. Pregnancy care, even for an uneventful pregnancy, costs money. So does birth. The average uncomplicated birth in Canada rings in at between $3,000 and $6,000, depending on whether it’s a vaginal or surgical delivery. Complications can increase that figure considerably. Neonatal care can also be pricey. For instance, according to the Canadian Institute of Health Information, care for a baby born at 29 weeks weighing less than kilogram costs an average of $91,946. One baby.

“I am pretty sure that if you asked the average Canadian whether or not the Canadian health-care system should pay for any of the health-care costs incurred in order to produce a child for a non-resident IP, the answer would be no,” Prof. Busby told the CFAS meeting. “In fact, I think it would be an emphatic no.” I suspect she’s right.

As far as Prof. Busby is aware, no province has put in place laws or policies to recover the cost of surrogate pregnancy care from foreign IPs. (A few Ontario hospitals have started charging for infant care, if the infants are for out-of-province parents.) Prof. Busby says governments could consider measures such as asking IPs for money up front or not issuing a birth certificate or passport until the bill is settled.

That’s a lot of work. It would involve co-ordination across departments and even, in some scenarios, levels of government. Another option, she says, would be to follow the lead of other countries and create residency restrictions, stipulating that only people who live in Canada can work with a surrogate here. That option would, in one fell swoop, alleviate the shortage of surrogates available to work with Canadians and eliminate the cost-recovery conundrum.

That would be a tidy solution, and, all things considered, maybe the most workable one. The cost-recovery issue is challenging. Access to surrogates by Canadians is challenging, too. There are other problems. Our country is struggling under a 14-year-old law that still hasn’t rolled out the meat of its regulatory details. We are woefully lacking in transparency about surrogacy – and assisted reproduction in general. Finally, although preliminary findings are reassuring, we have not yet done nearly enough research to establish that Canadian women who act as surrogates are not exploited.

I am not hopeful, given Canada’s track record in this sphere, that we will crack these tough problems any time soon, or ever. But let’s imagine we did – no cost to the Canadian public, adequate numbers of surrogates to work with Canadian families, effective laws for and public scrutiny of the process and confidence that women were treated fairly. Then, it seems to me, Canada would be an excellent place for international surrogacy. Surely the ideal is for surrogates and babies to have quality medical care, for IPs to be free from discrimination, for parentage issues to be resolved quickly.

If we did somehow get our house in order, I’d be the first to ask: If you believe that surrogacy is a legitimate way of achieving parenthood, what would be the argument against welcoming it here?

Source: How Canada became an international surrogacy destination: Alison Motluck

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Yet another petition on birth tourism

2018/10/09 Leave a comment

Further to the October 2016 petition submitted by Conservative MP Alice Wong (Richmond Centre) advocating adoption of qualified birthright citizenship (one parent needs either to be a citizen or permanent resident, the Australian approach), two years later Liberal MP Joe Peschisolido (Steveston-Richmond East) presents a softer petition 6 October advocating for a study on the extent of the practice and that the government state it does not support the practice with an equally soft commitment to do something “concrete.”
Likely a political response to the tensions in Richmond, where over 20 percent of live births are to non-resident mothers and positioning given the Conservative party resolution calling to limit birthright citizenship to offspring of Canadian citizens or permanent residents.
Working on an article with more accurate and. spoiler alert, higher numbers which should be out later this month or early November:
Source: Richmond MP presents birth tourism petition to parliament

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Toronto Sun Editorial: Birth tourism in Canada needs to be addressed

2018/10/02 Leave a comment

Doing some further work, based upon more accurate (and higher) numbers than those collected by StatCan and the vital statistics agencies, that will form the basis of an upcoming article in the next month or so.

As the previous government learned during its efforts to qualify birthright citizenship (What the previous government learned about birth tourism), not as simple to address as it may appear:

Canadians on social media recently clued in to a curious blog from Nigeria that encourages the practice of birth tourism.

“Top Tips for Having Your Baby in Canada from Nigeria” is the name of an actual blog post on the popular Nigerian travel site, Naija Nomads, that encourages people to give birth while on a trip to Canada to secure Canadian citizenship for their child.

The author discusses her own experiences giving birth in Canada and why she did it. “Canada offers more benefits for its citizens (immigration policies are better, free health care + college education is cheaper)” and that “Canada is cheaper to have your baby.”

The author offers detailed advice ranging from visa applications to where in the country to plan the birth. “Ontario is where most people have their babies but who knows, Quebec or Nova Scotia might be better for you.”

The blog posted a series of tweets further discussing the issue, but appears to have deleted them after Sun columnist Anthony Furey drew attention to them.

But this incident brings renewed focus on an issue that has become increasingly concerning in Canada.

A Postmedia report from June revealed that the number of babies born at Richmond Hospital in British Columbia now account for about 20% of all deliveries.

“We are reaching a tipping point,” said Liberal MP Joe Peschisolido, who represents the riding of Steveston – Richmond East. “Nurses have told me that this is displacing folks from giving birth in Richmond.”

Peschisolido created an e-petition to back his efforts to get his government’s cabinet to clamp down on the issue.

“In response to birth tourism, Australia and New Zealand changed their laws, granting citizenship to babies only when at least one parent is a citizen or a legal resident,” Postmedia reported.

Canada ought to consider something similar. It’s difficult to blame people like the Nigerian blogger for taking advantage of something that is allowed by law.

The Conservatives recently voted in favour of a policy resolution put forth at their annual convention to end birth tourism.

It was a tight vote and a controversial one. But the integrity of our immigration system matters.

If the issue is also straining our resources, as reports suggest, then that too must be addressed.

Source: EDITORIAL: Birth tourism in Canada needs to be addressed

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Birthplace doesn’t necessarily guarantee citizenship, feds argue at Supreme Court

2018/09/12 1 Comment

Have been engaging on Twitter on this case and striking that this press report seemed to miss the focus of the government’s brief: whether the children of spies not working out of a diplomatic mission should be entitled or not to birthright citizenship.

As the factum notes:

98. The Registrar’s interpretation is also consistent with the interpretive principle of avoiding absurdity. The result of the majority’s interpretation is that the children of foreign intelligence agents posted to an embassy and benefiting from diplomatic privileges and immunities (e.g. by posing as “economic development officers”) are caught by s. 3(2)(a), while the children of undercover intelligence agents engaged in surreptitious espionage are not. Justice Bell recognized this absurdity on judicial review,147 but the majority dismissed it on appeal as a policy choice – despite the presumption against absurdity being a well-established principle of statutory interpretation.148

99. Indeed, the policy preference that the majority cited is itself somewhat illogical and results in anomalous outcomes. Here, Vavilova and Bezrukov’s purpose for being in Canada was the same as the other categories of persons in s. 3(2)(a) of the Act, namely, to serve their home government, in their case through their undercover work as long term Illegals for Russia’s Foreign Intelligence Service. Like the other persons listed in s. 3(2)(a), their presence and employment in Canada was intended to advance their state’s interests.

100. As the majority indicates, its preferred interpretive policy choice for s. 3(2)(a) of the Act tries to avoid visiting “the sins of the parents” upon Vavilov, whose parents were undercover Russian spies, but has no difficulty in visiting those same “sins” on the children of accredited diplomats or foreign spies merely because they operate out of an embassy. In any event, this is not a case about the “sins” of Vavilov’s parents, but rather their employment as Russian spies and their duty and service to Russia at the time of his birth in Canada. When considered in this way, the provision provides for the same outcome for both of these categories of persons in Canada in the service of a foreign government. In both cases, the children’s citizenship status is a result of their parents’ chosen employment. By contrast, the majority’s interpretation results in a more favourable outcome for the children of those whose employment is surreptitious and undertaken by fraudulent means.

The CP artilce:

International law does not require Canada to give citizenship to babies born on its soil, the federal government is telling the Supreme Court — an argument that could inadvertently bolster a recent Conservative party resolution aimed at stemming so-called birth tourism.

Canada is one of fewer than three dozen countries that follow the practice of citizenship based on birthplace and some — including Australia and Britain — have modified or ended automatic birthright in recent years, the government says in a case that will determine whether the Toronto-born sons of Russian spies are Canadian citizens.

“Indeed, no European countries, for example, grant an unqualified automatic citizenship by birth and they have no obligation to do so,” the federal submission says.

“Only 34 countries grant the automatic acquisition of citizenship through birthplace regardless of parents’ nationality or status. This practice is not consistent and uniform enough to ground a rule of customary international law.”

Federal lawyers are playing down the concept of automatic citizenship in laying out the reasons the government believes Alexander and Timothy Vavilov — the offspring of Russian intelligence agents — should not be recognized as Canadian citizens, even though they were born in Ontario.

The federal Liberals adopted a decidedly different tone recently after the Conservatives passed a policy resolution calling on the government to enact legislation to end birthright citizenship “unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.”

Conservative Leader Andrew Scheer says one of the goals is to end the practice of women coming to Canada simply to give birth to a child that will automatically attain Canadian citizenship.

Refugee and human rights advocates have objected, saying there is no evidence of a birth tourism problem to solve and that the Conservative policy would open the door to stateless children being born in Canada.

Birthright isn’t set in stone

Following passage of the resolution, Mathieu Genest, a spokesperson for Immigration Minister Ahmed Hussen, said it’s a “shame to see the Conservatives going back down the path established by the Harper government, which seeks to strip away the citizenship of people who have only ever known Canada as a home.”

Justin Trudeau’s principal secretary, Gerald Butts, called the Conservative policy “a deeply wrong and disturbing idea.”

However, the federal submission to the Supreme Court strongly suggests the legal notion of automatic birthright is not carved in stone.

It notes even those states that have chosen to grant citizenship to children born on their soil are not prohibited from applying exceptions. “A review of citizenship entitlements in various countries reveals a multitude of variations and restrictions on automatic citizenship by birth.”

The Supreme Court will hear oral arguments in December in the case of the Vavilov brothers.

“In short, nothing in international law requires Canada to bestow citizenship on the basis of birth, much less to give citizenship to children born to parents in the service of a foreign government,” the written federal submission says.

Two years ago, the government took a rosier view of the concept in a formal response to a petition against birthright citizenship sponsored by Conservative MP Alice Wong.

John McCallum, immigration minister at the time, pointed out that the United States and Mexico, as well as a number of other countries in the Americas, such as Brazil and Argentina, provide citizenship based on birthplace.

“While there may be instances of expectant mothers who are foreign nationals who travel to Canada to give birth, requiring that a parent be a citizen or permanent resident in order for their child to acquire citizenship through birth in Canada would represent a significant change to how Canadian citizenship is acquired,” McCallum added.

Source: Birthplace doesn’t necessarily guarantee citizenship, feds argue at Supreme Court

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