Lawyers Financial

Citizenship decision disappointing: Cohen

A Federal Court of Appeal decision that says children born abroad must have a genetic connection to their Canadian parents in order to receive Canadian citizenship raises issues of national importance, and should be heard by the country’s top court, Toronto fertility lawyer Sara Cohen tells Law Times.

The legal publication reports Canada (Citizenship and Immigration) v. Kandola involved a child born in India to a Canadian father and an Indian mother, and the married couple, who were both infertile, used sperm and ova donations to conceive.

The Canadian government refused to give the child citizenship on the basis that it had no genetic connection to a Canadian citizen, and in March, the Federal Court of Appeal sided with the government and overturned a previous decision, Law Times reports.

“This is an absurd result, the way I see it, and it doesn’t make sense as a body of law altogether,” Cohen says in the publication.

“The baby in Indian law is a child of its mother and a child of its father because the parents are married. Under Canadian law, in every single province there’s always a presumption of paternity if someone is married, regardless of the genetic connection,” she says.

Cohen sees the decision as discriminating against children by the way in which they were conceived, says Law Times.

“We haven’t said for any other child born in that situation when you’re not using assisted reproductive technologies that they’re not entitled to citizenship on the basis that they don’t have that genetic connection. So why are we now doing it just because the child was born using assisted reproductive technologies?”

Cohen hopes Parliament will amend the Citizenship Act to make it clear that children born through gamete donation can also obtain Canadian citizenship by virtue of descent, the article says, noting the parents have already moved to Canada and don’t have the funds to pursue a further challenge, though Cohen says, "It’s clearly a decision that is ripe for the Supreme Court.”

Given how common transnational third-party reproduction is today, Cohen believes another court challenge is inevitable, Law Times reports.

“I think there’s going to be more and more cases that have to do with this and I think someone is going to challenge it at some point because I think it’s bad law,” she says.

“I really hope someone does something. It’s just so sad. It just doesn’t feel good.”

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