Citizenship must be about more than a genetic link

2016/03/15 Leave a comment

This issue was already subject of some analysis and study during my time at CIC/IRCC a number of years ago.

The previous government, which addressed adoption issues, was not prepared to move on this one.

We will see whether the current government will respond (it was not in the party platform, ministerial mandate letter or the proposed changes to citizenship in Bill C-6, so I expect not in the short-term):

The Canadian government is playing fast and loose with the definition of “Canadian.” In March 2014, the Federal Court of Appeal decided Nanakmeet Kandola, a young girl born abroad to a Canadian parent, was not a citizen because there was no genetic link between them. Nanakmeet’s mother carried and gave birth to her but she was the product of anonymously donated sperm and ova. Think of it as adoption in utero.

Yet, a child adopted by Canadian parents who fills out the same application for a Citizenship Certificate as Nanakmeet’s father did will be approved. No genetic link required.

Perversely, ex-Nazi war criminal Helmut Oberlander maintains his right to Canadian citizenship until yet another government review is completed. And shocking to some, children born to Canadian Daesh brides are considered citizens.

Where has Canada gone wrong?

The Citizenship Act dictates who is Canadian. There are three main roads to “become” Canadian — be born in Canada, immigrate and then apply when you meet all the requirements, or inherit citizenship through your parent or grandparent if born abroad. So why was Nanakmeet’s request for citizenship refused when others using the same route were approved?

The law is behind the times.

Sex and adoption were once the only ways a person was able to become a parent but times have changed. These options are now mere fence posts in the world of conception. As early as 1983, the first “test tube” birth occurred in Canada. In 2004, the Assisted Human Reproduction Act officially sanctioned fertility relationships with surrogates, where a woman carries a child for someone else, and ova and sperm donations. Today, assisted human reproduction is a full-fledged, albeit small, industry in Canada with fertility doctors, counsellors, clinics, lawyers and even agents.

Is it hypocritical for Canada to condone the birth of children through assisted fertility procedures but then deny some children citizenship because they were born through these same procedures?

The court decided Nanakmeet’s case two years ago. The majority of the court wrote, “Several important policy issues also arise because of the novelty which this case presents … These questions are worthy of further consideration and risk being answered by the Courts unless Parliament exercises its prerogative to deal with them by way of legislation.”

What changes do we need?

Canada must expand the definition of parent in the Citizenship Act to include those who use assisted fertility to become parents. Grant these children citizenship the same way naturally born and adopted children receive it. As long as a parent is legally recognized as the parent of their child, that child deserves citizenship.

As the Federal Court of Appeal warned, the government risks a host of policy issues if changes aren’t made to the law. Such issues include confusion if judges reach different conclusions with each case they decide. If genetics is the test, ova and sperm donors could pass their citizenship to children even if they aren’t parents to them. Surrogates could claim genetic links and the right to pass on citizenship to children they birth when the surrogate never parents the child. Being Canadian must mean more than having the right genetic link.

The new Liberal government and the Minister of Citizenship and Immigration, John McCallum, have shown they are sympathetic to the realities of the times by admitting Syrian refugees, shortening processing times for certain immigration applications, and proposing changes to the Citizenship Act to make it easier to become a citizen.

Source: Citizenship must be about more than a genetic link | Toronto Star

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Born Canadian? Citizenship of babies born using new fertility methods sometimes unclear

2014/04/12 Leave a comment

One of the complexities in citizenship policy related to new fertility techniques and the question of a genetic link. Not addressed in the proposed Citizenship Act revisions. While the number of cases is relatively small, they are hard on the families involved but also raise issues as to whether surrogacy should be encouraged in developing countries, where women may be more desperate and vulnerable:

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.

Born Canadian? Citizenship of babies born using new fertility methods sometimes unclear.

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