Are you my Mother(land)? Jus Sanguinis Citizenship, Canada, and the International Fertility Market

In 2014 Canada’s Federal Court of Appeal handed down its decision in Canada (Citizenship and Immigration)v. Kandola. The case involved a birthright claim to Canadian citizenship for an infant, born in India, to a married, heterosexual couple – an Indian mother and a Canadian father. The parents had conceived the child with the assistance of reproductive technologies, and neither of them was genetically related to their daughter. Nonetheless, the child was born in the context of a marriage, and was the outcome of an intentional, parental project. Within Canada, parentage law is determined by the provinces, and in the fact situation that pertained in Kandola, every province would have declared Malkiat Singh Kandola to be the child’s father. In the context of Canada’s Citizenship Act, however, the federal government argued that the lack of a genetic relationship meant that Mr. Kandola was not the father, and hence that the child did not have a claim to Canadian citizenship, since she was not born in Canadian territory and did not have a Canadian parent. The Court of Appeal agreed. This paper interrogates the challenges posed by a strict genetic definition of parentage, and thus a bio-genetic definition of citizenship, in a context in which Canadians are increasing their use of international fertility services, and parental status is being granted, at the provincial level to same-sex partners, and even to three parents (in British Columbia). The disjuncture between social practice and domestic legal regimes with national citizenship determination is, likely, unsustainable. The Federal Court of Appeal itself noted that the case could lead to a challenge to the equality provisions of the Charter of Rights and Freedoms on grounds that a child’s capacity to gain access to derivative citizenship varied depending on the method of conception (Kandola, Para 75). The Appeal Court’s decision in Kandola provokes questions of why this narrow genetic definition of derivative citizenship was argued by Canada’s Department of Citizenship and Immigration in the first instance and what kind of legal framework would be better? To that end, the paper briefly considers alternative approaches in the common law jurisdictions of the UK and the US. My speculative alternatives will account for the desires of intentional parents, the protection of surrogate mothers and donors from exploitation, and the health, well-being and protection from statelessness of the resulting children. In demonstrating the complexities that arise from birth abroad with the assistance of reproductive technologies, the research also provokes debates about whether birthright citizenship is, ultimately, and in any circumstance, an appropriate means for constituting citizens/national membership. The desperate legislative and judicial flailing to name parents in order to determine citizenship attests to the political character of families and thus to nation-states. The question of who is a parent in the law, and the relationship between that question and the determination of citizenship for children are choices – and we could decide otherwise, in ways that uphold principles of consent, inclusion, the protection of human rights and aversion to statelessness.