The answer, it depends.
If the child is born outside Canada and they
have a genetic link with a parent who
is a Canadian citizen, the child is a Canadian citizen by descent. However, if the child is born through
surrogacy arrangements but there is no genetic link, then the child may not be
eligible for citizenship by descent. This has been confirmed by the Federal
Court of Appeal in Canada (Citizenship
and Immigration) v. Kandola, 2014 FCA 85 (CanLII), where the Court noted
that a “genetic contribution, however made, is the only way in which a child” –
can get Canadian citizenship by descent.
With the advent of AHR (Assisted Human
Reproduction), the citizenship laws are creating aggravation for new parents
who want to bring their child back to Canada as Canadian citizens. The citizenship laws need to change, and the
Federal Court of Appeal said as much:
[75] The
more pressing policy issue which arises from the analysis is that Operation
Bulletin 381, inasmuch as it provides for different and more demanding
conditions for the grant of derivative citizenship to children born through
AHR, has no legal foundation. While no Charter issue had been raised before
this Court, I note that this interpretation would create an unequal treatment
between children of Canadian citizens depending on the manner in which they are
conceived.
[76]
Several important policy issues also arise because of the novelty which this
case presents. For instance, because a genetic link is the only connection
required in order to convey derivative citizenship under the Act, a
Canadian donor conveys that right like any other Canadian procreator. Also, by
reason of the new reality created by AHR technology, it cannot be excluded that
a child is “né […] d’une mère” when borne by a gestational mother, in which
case the gestational link would also be capable of conveying derivative
citizenship. 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.
However, until now, no changes have been made
to the citizenship laws on this front.
The other immigration options that can be pursued to bring the child to
Canada, if there is no genetic link, is by adoption; or to apply for a grant of
citizenship under subsection 5(4) of the Citizenship Act as a Special
Case; or through an application under
s.25 for humanitarian and compassionate consideration for permanent residency,
and once the child becomes a permanent resident to apply for citizenship under
subsection 5(2) of the Citizenship Act.
It is important for you to
understand these immigration consequences before you decide with international surrogacy, as
clearly, it will impact the citizenship of the child, the time it will take to bring
the child back to Canada, and many other issues related to the child’s status
in Canada. 