By
Andy Semotiuk

What Is the Definition Of “Family” In Immigration Law?

April 16, 2014

Toronto immigration lawyer Andy Semotiuk

Toronto immigration lawyer Andy Semotiuk: Here is a very interesting case, involving technology, science, and immigration law. Specifically, family reunification:

Malkiat Kandola always assumed that when his wife gave birth in India through in-vitro fertilization, their baby would automatically become a Canadian citizen, like the Vancouver-area truck driver himself.

But an immigration officer ruled otherwise, and now the Federal Court of Appeal has upheld that decision in a “groundbreaking” case that raises intriguing questions about the intersection between modern fertility treatment and immigration.

Because the embryo used in Ms. Kandola’s IVF treatment was made from sperm and eggs donated by others, the child, now four, had no genetic connection to either parent. And without those blood ties, she could not become a citizen by birth, the court concluded in a 2-1 split decision.

This case goes to the heart of what the definition of a family is.

The court has taken the view that a genetic connection must exist for a child to be the family member of a parent. But is that really what the policy of the state should be? Shouldn’t the state’s interest be in advancing the unity of families based on genuine emotional ties and the desire of parents to have children – even when genetically that may not be possible?
I believe a policy needs to be developed in this ‘brave new world’ that would at least allow for possible approval of cases like these, but leave the courts as the final arbiters of these matters.

Andy Semotiuk is a Canadian and US immigration lawyer with Toronto immigration law firm Pace Law Firm. You can learn more about Andy at My Work Visa.

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