ARCHIVED – Operational Bulletin 381 - March 8, 2012

Assessing Who is a Parent for Citizenship Purposes Where Assisted Human Reproduction (AHR) and/or Surrogacy Arrangements are Involved

This Operational Bulletin replaces OB 197

Issue

Children born abroad through assisted human reproduction (AHR) and/or surrogacy arrangements undertaken by Canadian intending parents are not eligible for Canadian citizenship by descent when no genetic lineage to the Canadian parent can be established.

This Operational Bulletin (OB) provides guidance for such instances.

Definition

The Uniform Child Status Act 2010 defines assisted reproduction as a method of conceiving other than by sexual intercourse. The Uniform Child Status Act further defines a surrogate as a person who gives birth to a child as a result of assisted reproduction if, at the time of the child’s conception, she intended to relinquish that child to

1. The person whose human reproductive material was used in the assisted reproduction or whose human reproductive material was used to create the embryo used in the assisted reproduction, or
2. The person referred to in a) and the person married to or in a common-law partnership with that person.

Background

In assessing who is a parent for citizenship purposes, officers may be faced with cases where the assessment is made more complex because of the involvement of AHR, including surrogacy. Due to developments and changes in such situations (both at the provincial/territorial level and internationally), Citizenship and Immigration Canada (CIC) thought appropriate to set out clearly its citizenship policy to best reflect the application of citizenship law to this new reality.

Current Status

The existence of a genetic parent – someone whose child contains their genetic information – is what current citizenship policy relies on to determine who can receive citizenship by descent (see CP 3). Under norms of Canadian family law, the determination of whether a person is a “parent” is not merely dependent on a genetic link between the biological parent and the child, but also based on evidence of intention to parent and demonstration of parentage as displayed by the existence of a legal parent/child relationship. In most cases, where there is no question with respect to the genetic relation between the parent and the child, birth certificates are accepted as valid evidence in the establishment of who is the parent.

However, cases involving AHR and/or surrogacy arrangements undertaken by Canadian citizens may result in children born abroad who are not genetically related to the Canadian parents. DNA will not be requested systematically, but rather only when there is evidence suggesting that the Canadian parent (through whom a claim by descent or derivative claim of citizenship is made) is not the genetic parent. See Appendix A below for the template letter requesting DNA.

Cases Currently on Hold

Under OB 197 (no longer active; replaced by this OB), applicants were given the option of having their case held pending a new policy where they asserted and had documentation proving that they are the legal parents of a child born through AHR and/or surrogacy.

Processing of these cases should continue under the guidelines listed below.

Policy and Procedure in the Absence of a Genetic Link

Children born through AHR and/or surrogacy arrangements undertaken by Canadian intending parents who, following a DNA test, have been found to have no genetic link to the Canadian parents, are not eligible for citizenship by descent. See Appendix B below for the refusal letter template.

Possible Scenarios and Corresponding Solutions in the Absence of a Genetic Link

1. Where Canadian parents are not yet legally recognized as parents in the foreign jurisdiction

Parents may wish to explore options for intercountry adoption in order to regularize the parental relationship for the purpose of applying for Canadian citizenship or immigration assuming that the adoption meets all of the requirements of the Citizenship Act and Regulations or the Immigration and Refugee Protection Act and Regulations. Several requirements must be satisfied for both intercountry adoptions and subsequent applications for either Canadian citizenship or immigration status (see CP 14 and OP 3).

2. Where Canadian parents are recognized as the legal parents in the foreign jurisdiction

However, in situations where AHR and/or surrogacy arrangements have been made, a person may already be legally recognized as a parent in the foreign jurisdiction where the birth certificate was issued, including having their name on the birth certificate. As such, adoption may not be possible. In these cases, the parent will be asked to submit written confirmation from the foreign jurisdiction or from expertise at the visa office that adoption is not possible. Adoption may also not be possible for other compelling reasons (for instance, some jurisdictions will not allow interreligious adoption or same-sex couple adoption).

3. Options for discretionary processing

In cases where there is no genetic link between the Canadian intending parent(s) and the child, and where adoption is not possible, facilitation of their return to Canada may be made through discretionary immigration processing. One option is to consider issuing the child a temporary resident permit to enter Canada and, subsequently, an application for humanitarian and compassionate permanent residence processing can be made on behalf of the child from within Canada to ultimately access citizenship under subsection 5(2) of the Citizenship Act. The other option is to apply for a grant of citizenship under subsection 5(4) of the Citizenship Act. These cases will be referred to Case Management Branch and will be assessed on an individual basis.

Documents to Submit

In all cases involving AHR and/or surrogacy, in addition to the birth certificate of the child, parents will need to submit:

• Proof of payment of hospital bills
• Contractual agreement with the lab
• Contractual agreement with the surrogate mother.

If DNA results are not submitted

If the applicant does not submit DNA results within 60 days, the application may be refused.

If DNA results are not acceptable

If the DNA results are not acceptable because they are not conducted by an accredited laboratory, then the applicant will be given 60 days to take corrective measures.

If the DNA results are not conclusive, the applicant will be advised to follow the procedure for the absence of a genetic link as outlined above.

If the applicant does not comply with these procedures, the application may be refused.