Surrogacy can be legally complicated. Immigration, too. Combine the two, and you are in for some of the quirkiest legal issues in some of the most heart-wrenching cases out there.
You may recall that last year, I wrote about twin brothers who were delivered by a surrogate in Canada. While both boys legally had a U.S.-citizen father, only one of the brothers was granted U.S. citizenship, but the other was denied. (Unfortunately, I don’t have any positive news to share on that situation. The parents of the twins are still embroiled in their lawsuit against the U.S. government.) Separately, there was also a child who was born to a Singapore father, via a surrogate in the U.S. Until this past month’s reversal by Singapore’s highest court, the child was denied citizenship in Singapore, despite the fact that his only legal parent was only a citizen of Singapore. So we had some mild good news when Singapore’s highest court reversed that denial last month.
This week, another parent-child combo has run into citizenship problems due to surrogacy and immigration issues. Canadian Joseph Tito turned to surrogacy in order to become a father on his own. Finding the process particularly expensive in North America, he chose a fertility clinic further abroad. The clinic helped him find a gestational surrogate in Kenya, and an anonymous egg donor. After Tito’s twin baby girls were born in Kenya, Tito and his mother were there to welcome them to this world and take care of them. Tito had done his research and inquired of the Canadian Consulate in Nairobi if he should expect any issues. He was (incorrectly) told that everything would be fine. Whoops!
The “One Generation” Limit
Unfortunately for Tito and his baby daughters, Canadian rules regarding automatic citizenship were changed in 2015. While the child of a Canadian citizen is generally entitled to Canadian citizenship, there is a “one generation” rule limiting the application of the automatic citizenship. You see, Canada doesn’t just care if a parent is a Canadian citizen. It cares *how* that person became a citizen. In Tito’s case, his mother is Canadian, and passed on her citizenship to Tito. But Tito was born in Italy, and lived there until his family moved him to Canada at age 5. So while Tito’s mother was able to pass on her citizenship to Tito, Tito is not entitled to further pass on his Canadian citizenship to his children not born in Canada, because he himself was not born in Canada.
So what country are the girls citizens of? Kenya? No. Unlike Canada or the U.S. where a person born in the country is automatically a Canadian or U.S. citizen, (yay 14th Amendment!), Kenya requires that a person born in Kenya have a least one Kenyan-citizen parent to be entitled to Kenyan citizenship. The gestational carrier who gave birth to the girls was not biologically related to them, and is not legally their parent. And the egg donor (aka the other biologically related person besides Tito) is unknown. So Kenya citizenship is a no go. Italy? Maybe. But applying for Italian citizenship probably doesn’t make sense, given that Tito’s home is in Canada. In the meantime, the girls are stateless.
The good news is that although Tito’s children aren’t entitled to automatic citizenship, Tito can at least apply for the girls to receive permanent resident status based on his citizenship (even though it is a lowly second-generation citizenship). However, while he waits for those applications to process, he is unable to leave Kenya and return home with his daughters.
Canadian Law To Change?
One of the reasons Canadians seek surrogacy assistance in other countries is the harsh and unclear regulations in Canada. The country’s ban on compensated surrogacy, and the threat of jail time and/or hefty fines if you cross the fuzzy line between “reimbursement” and “compensation,” causes many hopeful parents to search abroad.
Canadian Member of Parliament Anthony Housefather has proposed a bill to update Canada’s assisted reproductive technology laws. He hopes with his new bill, permitting compensation, the country can better support its growing families and those offering to assist them. I touched base with Housefather on this case, and the latest status of his bill. He kindly responded to me while on vacation. (Enjoy your time in Boca!) Housefather reported that the bill is unlikely to be reintroduced until after the elections next October. In the meantime, it has been continuing to gain cross party support.
Housefather noted that Tito’s case is not really about whether surrogacy can be compensated, but rather as one demonstrating the errors of the previous conservative government’s limitation on Canadian citizenship. Of course, while Tito may have gone abroad for surrogacy regardless of Canada’s harsh and limiting surrogacy laws, more hopeful parents would likely stay home and not risk such immigration complications if Canada’s domestic laws were more friendly toward family-building options.
Housefather noted that Tito is welcome to reach out to him, and he would be happy to assist him and his family to the extent he can. As for everyone else, the lesson is a familiar one. Before you start your family via surrogacy, and especially if you are doing so abroad, don’t scrimp on attorney consults. The consequences could be severe.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.
That Awkward Moment When You Find Out You And Your Twin Sister Are Not Citizens Of Any Country curated from Above the Law
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