“A legitimate family project”

The intersection and gaps between Canadian family and immigration law is highlighted by they treatment of children conceived by assisted human reproduction (AHR) in both areas of the law. A recent Federal Court of Appeal decision illustrates the need for consistency between the two areas of law where children born abroad through AHR are concerned.

The Federal Court of Appeal decision in Kandola concerns a situation in which a child was conceived in India through donated sperm and donated eggs. The child was carried and born to a mother married to a Canadian citizen.

Typically, children born abroad to Canadians have an automatic right to Canadian citizenship. However, Canadian law and policy have required a genetic link between the Canadian parent and the child born abroad, regardless of the Canadian’s intent to parent or recognition as a parent in the foreign jurisdiction.  The definition of parent in Canada’s Citizenship Act is silent on the need for a genetic link, which complicates matters.

Kandola was an appeal from a Federal Court Trial Division decision which determined that the Citizenship Act should recognize Canadian citizenship for a child conceived and born through AHR. Two judges of the Federal Court of Appeal disagreed, relying mainly on the French text to determine that a genetic link is required. In dissent, however, Justice Mainville of the Federal Court of Appeal found that the silence of the legislation on the need for a genetic link was determinative of the issue that no genetic link is required.  The intended parents had engaged in “a legitimate family project” in the words of the judge, and Canadian citizenship should follow. To do otherwise would place the family in a very difficult position given that adoption was not possible.

Justice Mainville’s decision takes Canadian law to a place of greater consistency between family law and immigration law. It recognizes the reality of new methods of creating families which does not penalize intended parents based upon infertility. Hopefully this important case will find its way to the Supreme Court for much needed clarification.

In the meantime, situations like the case we represented – referred to as the most famous case involving immigration and human reproduction – will continue to occur.