Who is a parent for citizenship purposes where assisted human reproduction (AHR), including surrogacy arrangements, are involved
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. 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, including 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.
In the absence of a genetic link
Children born through AHR, including 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.
1. Where Canadian parents are not recognized as the legal 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.
2. Where Canadian parents are recognized as the legal parents in the foreign jurisdiction, and other scenarios where adoption is not possible
In situations where AHR, including 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 Canadian 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).
In these 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
Parents will need to submit:
- Child’s birth certificate
- Proof of payment of hospital bills
- Contractual agreement with the lab
- Contractual agreement with the surrogate mother (if applicable).
Submitting DNA results
If DNA results are not submitted
If the applicant does not submit DNA test results within 60 days, the application may be refused.
If DNA results are not acceptable
If the DNA test 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 test 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.
For more information on DNA, see the establishing parentage guidance.
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