The legal complications of reproductive tourism

A recent article in the Canadian newspaper The National Post highlights the potential complexities of immigration and citizenship issues for babies conceived and/or born out of country using third party reproduction (donor egg, donor sperm, surrogacy).

Reporter Tom Blackwell uses the example of Malkiat Kandola and his wife to highlight the complications of reproductive tourism when it comes to determining the citizenship of offspring produced outside the country. Kandola, a Canadian citizen, assumed that when his wife gave birth in India using IVF, their baby daughter would automatically become a Canadian citizen when they returned to Canada. However, an immigration officer disagreed. Because the embryo used in Mrs. Kandola’s IVF treatment was created using sperm and eggs donated by citizens of India, their daughter has no genetic connection to either of her Canadian parents.

Although children born overseas to Canadian parents generally become citizens without question, in the Kandolas’ case, immigration officials determined that the Kandolas’ daughter is not Canadian because she is not related genetically to either parent – most importantly to her Canadian father. The Federal Court of Appeal ruled in a 2-1 decision that without genetic ties, the Kandolas’ daughter could not automatically become a Canadian citizen.

Such complex immigration and citizenship scenarios are arising more frequently in the US, UK and Canada, as more individuals and couples are seeking fertility treatment outside of their home country. Sergio Karas, a Toronto-based immigration lawyer says:

“Science is always running ahead of the law. We now have technologies and ways of doing things that legislators never turned their minds to.”

The judge who wrote the ruling called for new legislation to address the issues created by reproductive tourism. He argued that the current policy requiring a genetic link for citizenship creates: “an unequal treatment between children of Canadian citizens depending on the manner in which they were conceived.”

Read the article here.

Read more about this issue here.

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