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Does Sperm Have a Flag? On Biological Relationship and National Membership

  • Lois Harder (a1)
Abstract

Drawing primarily from the Canadian case, this paper explores the process of birthright citizenship determination for children born abroad through the use of assisted reproductive technologies. The determination of parentage is central to these cases, raising issues of how parental status is defined in the law—through biology, intentionality, and/or matrimony. Moreover, the complexities of defining who is a child and who is a parent, in order to determine who is a citizen, reveal fundamental contradictions in the consent-based model of liberal citizenship.

S’appuyant principalement sur le cas canadien, cet article explore le processus par lequel la citoyenneté des enfants nés à l’extérieur du pays à l’aide de technologies reproductives assistées est déterminée. L’établissement d’un lien de filiation est fondamental dans ces cas, soulevant la question de comment le statut filial est défini par la loi—par la biologie, l’intentionnalité ou le mariage. Par ailleurs, l’acte complexe de définir qui est un enfant et qui est un parent afin de déterminer qui est un citoyen comporte des contradictions fondamentales au sein du modèle basé sur le consentement de la citoyenneté libérale.

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1 Examples range from Pratten v British Columbia (Attorney General) 2012 BCCA 480; CBC Radio, “Brave New Family,” Ideas, 12 March 2009, http://www.cbc.ca/ideas/episodes/2009/03/12/brave-new-family-part-1/; Jacqueline Mroz, “One Sperm Donor, 150 Offspring,” New York Times, 5 September 2011, http://www.nytimes.com/2011/09/06/health/06donor.html?pagewanted=all&_r=0; The Kids are Alright (2010); Starbuck (2011); Seed (2013).

2 Services are advertised online. See, for example, http://www.fertility-docs.com; weecaresurrogacy.com/IndiaSurrogacy; www.conceptualoptions.com. Journalistic commentary has been extensive, but see CBC Radio, “Of Mothers and Merchants: Commercial Surrogacy,” The Current, 28 March 2012, http://www.cbc.ca/thecurrent/episode/2012/03/28/of-mothers-merchants-commercial-surrogacy/.

3 Stevens, Jacqueline, Reproducing the State (Princeton: Princeton University Press, 1999).

4 Bonnie Honig, Democracy and the Foreigner (Princeton: Princeton University Press, 2001), 75. This consent-based myth obviously ignores histories of colonialism, slavery, conquest, and war, which provide a more accurate history of nation-state formation.

5 Siobhan Somerville notes the connection between the naturalization of plants and the naturalization of people. The process of naturalization, she observes, is one in which the difference between the indigenous and the imported is effaced. Most significantly, the process of naturalization automatically entitles the children of naturalized citizens to citizenship by birth. See “Notes toward a Queer History of Naturalization,” American Quarterly 57, no. 3 (2005): 667, 669.

6 Tabitha Freeman and Martin Richards, “DNA Testing and Kinship: Paternity, Genealogy and the Search for the ‘Truth’ of our Genetic Origins,” in Kinship Matters, ed. Fatemeh Ebtehaj, Bridget Lindley, and Martin Richards (Oxford and Portland, Oregon: Hart Publishing, 2006), 72; Mykitiuk, Roxanne, “Beyond Conception: Legal Determinations of Filiation in the Context of Assisted Reproductive Technologies,” Osgoode Hall Law Journal 39, no. 4 (2001): 779.

7 Mykitiuk, “Beyond Conception,” 782. In the UK context, Sally Sheldon notes that until 1981, only married fathers, and in very rare circumstances, unmarried mothers, could pass along their citizenship to their children. Unmarried fathers were only granted this right in 2006. See “Unmarried Fathers and British Citizenship: The Nationality, Immigration and Asylum Act 2002 and British Nationality (Proof of Paternity) Regulations 2006,” Child and Family Law Quarterly 19, no. 1 (2007): 2.

8 Alberta, Family Law Act s 7.2, Statutes of Alberta 2003 F-4.5; British Columbia, Family Law Act s 26.1, Statutes of British Columbia 2011, c 25, Part 3.

9 Stevens, Reproducing the State, 231.

10 It is also worth noting that Alberta law (as well as other Canadian jurisdictions) states that a man is a legal father if a court of competent jurisdiction in Canada says that he is a father for any purpose. As Fiona Kelly and Jenni Millbank have ably demonstrated, this flexibility in the definition of legal fatherhood has enabled Canadian courts to insert fathers—biologically related or not—into the families of sole parents and lesbian co-mothers against the mothers’ expressed wishes. See Fiona Kelly, “Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family,” Canadian Journal of Women and the Law 21, no. 2 (2009): 315–51, and Millbank, Jenni, “The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family,” International Journal of Law, Policy and the Family 22, no. 2 (2008): 149–77.

11 For an insightful discussion of the parental presumption situation faced by Canadian same-sex partners see Fiona Kelly, “Equal Parents, Equal Children: Reforming Canada’s Parentage Laws to Recognize the Completeness of Women-led Families,” University of New Brunswick Law Journal 64 (2013): 253–82.

12 Gill and Maher, Murray and Popoff v Ministry of Health 2001 BCHRTD no 34; MDR v Ontario (Deputy Registrar General) 2006.

13 PC v SL 2005 SKQB 502, 262 DLR (4th) 157 at paras 17, 20.

14 Ibid. at para 21. It should also be noted that while Saskatchewan’s parentage provisions have not been amended, the province’s Vital Statistics Act 2009 SS 2009m c V-7.21 sec 20(3)(c) does make provision for the registration of “any additional parent.”

15 Mykitiuk, “Beyond Conception,” 810. Mykitiuk states that eight people might claim to be the parents, but by my reading, this assumes that the partner to the sperm donor might assert a claim to parentage. Given that there is no maternal presumption in the law, this seems to be incorrect.

16 Assisted Human Reproduction Act SC 2004, c 2 s 6; Family Law Act SA 2003, c F-4.5, s 8.2(8)(a); art 538 CCQ (1991).

17 Family Law Act SA 2003, c F-4.5, s 8.2(1).

18 Family Law Act SA 2003, c F-4.5, s 8.1(3). Other provinces have not yet addressed surrogacy, as a recent Manitoba case vividly demonstrates. In this situation, an embryo was created with the gametes of a married heterosexual couple. The woman’s sister volunteered to be the surrogate mother and twins resulted. While all of the parties are in agreement about the arrangement, and, indeed, the biological parents are actively raising the children, Manitoba law continues to insist that the children’s parents are the gestational mother and her husband. See CBC News, “Winnipeg Family Wants Changes to Surrogacy Laws,” 7 May 2013, http://www.cbc.ca/news/canada/manitoba/story/2013/05/07/mb-surrogate-parents-manitoba.html.

19 Hofman, Darra, “‘Mama’s Baby, Daddy’s Maybe:’ A State-by-State Survey of Surrogacy Laws and their Disparate Gender Impact,” William Mitchell Law Review 35 (2008–2009): 449–68.

20 Bailey, Alison, “Reconceiving Surrogacy: Toward a Reproductive Justice Account of Indian Surrogacy,” Hypatia 26, no. 4 (2011): 715–41, France Winddance Twine, Outsourcing the Womb: Race, Class and Gestational Surrogacy in a Global Market (New York: Routledge, 2011).

21 AA v BB 2007 ONCA 2 (CanLII). Given the very specific conditions that pertained in this case, it is not clear that the decision offers a reliable precedent for all possible three-parent scenarios. See Nicole LaViolette, “Dad, Mom—and Mom: The Ontario Court of Appeal’s Decision in A.A. v B.B.” (Case Comment), Canadian Bar Review 86 (2007): 665–89.

22 Tim Caulfield, The Cure for Everything (Toronto: Penguin Canada, 2013).

23 Family Law Act SBC 2011, c 25, Part 3, s 30.

24 In that case, the issue before the court was whether the non-biological mother, who was, in fact, a much more active and engaged parent than the biological father, could be recognized as a parent despite her lack of biological contribution to the child, and whether that recognition could happen without cancelling out the parentage of the biological dad, as would happen through an adoption proceeding.

25 This rationale was articulated by the director of legal services to the secretary of state, as the government was considering amendments to the Citizenship Act in 1976. Cited in Taylor v Canada (Citizenship and Immigration) 2007, para 70.

26 See Citizenship Act RSC 1985, c C-29 s 3. Regarding the significance of extending citizenship to the “children” of veterans (now themselves senior citizens), Chris Alexander, Minister of Citizenship and Immigration, stated that the extension of Canadian citizenship to the pre-1947 category ensured that “we take the final steps to make sure that… the children of those who fought in World War II, those who were among the most committed to the defence and service of this country, enjoy all the benefits of Canadians, not just in the first generation but also in succeeding generations, as governed by the provisions of this law.” Canada, Debates 27 Feb 2014, 41st Parliament, 2nd Session, http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Hansard&Doc=53&Parl=41&Ses=2&Language=E&Mode=1.

27 MAO v Canada (Citizenship and Immigration), 2002 CanLII 47118 (IRB) – 2002-01-18. This was a case involving the determination of parentage for a naturalized Canadian father seeking to sponsor his son.

28 Birth certificates and other documentation are generally all that is required, unless there is some suspicion about the likely parentage of a child. See, for example, Azziz v Canada (Citizenship and Immigration) 2010 FC 663 (CanLII) in which the advanced age of the mother led consular officials to question the parentage of the child. In this case, the birth certificate and notice of birth signed by the midwife were not regarded as conclusive, and DNA evidence was requested.

29 Citizenship and Immigration Canada, “Operational Bulletin 381—Assessing Who is a Parent for Citizenship Purposes Where Assisted Human Reproduction (AHR) and/or Surrogacy Arrangements Are Involved,” 8 March 2012, http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob381.asp.

30 Ibid.

31 Canadian citizenship is only granted to children born abroad if the child’s Canadian parent was born in Canada, acquired Canadian citizenship through naturalization, or was employed overseas as a member of Canada’s armed services or an employee of a federal or provincial government. Citizenship Act RSC 1985 c C-29, ss 3.3, 3.5. Technically, this provision could be read as a residency requirement, except that there is no stipulation on how long a person has to remain in Canada.

32 Canada (Citizenship and Immigration) v Kandola 2014 FCA 85 (CanLII).

33 Kandola v Canada (Minister of Citizenship and Immigration) 2013 FCJ No 374 (Quicklaw) at para 8.

34 Ibid.

35 Ibid. at para 32.

36 Ibid. at para 24.

37 Canada (Citizenship and Immigration) v Kandola 2014 FCA 85 (CanLII) at para 54. It seems unlikely that the judge considered the implications of this claim very carefully. In effect, if a child can become a Canadian citizen through legitimation, unmarried single-parent foreigners should be marrying Canadians as quickly as they can to ensure a fast track to citizenship.

38 Ibid. at para 22.

39 Ibid. at para 59.

40 Mainville J.A. dismissed the relevance of the distinctions drawn between the French and English texts, regarding them as a function of administrative re-drafting rather than legislative amendment, and finding that such changes were not intended to change the law (ibid. at paras 89, 91). From there, he offered an analysis of the meaning of “parent” in the law, including an extensive analysis of the paternal presumption (indeed, it forms the primary focus of his dissent). Parliament, in his estimation, would have been well aware of the paternal presumption when it drafted the derivative citizenship provisions of the Citizenship Act. Since those provisions did not explicitly exclude non-genetic fathers as they did adoptive parents, the federal government’s argument for a rigidly genetic definition of “parent” in the case at bar was, in his view, unpersuasive (at para 108).

41 Ibid. at 72.

42 Ibid. at 75. As well, a marital status argument could be advanced by same-sex couples with regard to the recognition of their parentage.

43 The derivative citizenship clause of the Citizenship Act reads: “Subject to this Act, a person is a citizen if the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen.”

44 Ibid. at 66.

45 Ibid. at 76.

46 British Columbia, Minister of Justice, “Family Law Act Explained, Part 3—Parentage,” http://www.ag.gov.bc.ca/legislation/shareddocs/family-law/part3.pdf.

47 The Federal Court of Appeal’s decision was handed down on March 31, 2014. Second reading and the committee stage for consideration of Bill C-24—where such an amendment might have been introduced—occurred between May 29 and June 4, 2014. No amendments to the Act were adopted. See Canada, Standing Committee on Citizenship and Immigration, 41st Parliament, 2nd Session, “Report 3: Bill C-24, An Act to Amend the Canadian Citizenship Act,” http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6634456&Language=E&Mode=1&Parl=41&Ses=2.

48 Stevens, Reproducing the State, 173–208.

49 See Mohapatra, Seema, “Stateless Babies and Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy,” Berkeley Journal of International Law 30, no. 2(2012): 412–50; Usha Rengachary Smerdon, “Crossing Bodies, Crossing Borders: International Surrogacy between the United States and India,” Cumberland Law Review 39 (2008–2009): 15–26; Richard Storrow, “Quests for Conception: Fertility Tourists, Globalization and Feminist Legal Theory,” Hastings Law Journal 57 (2005–2006): 295–330. The Baby Manji case, involving a conflict of laws between India and Japan, is perhaps the most famous instance of this situation. In this case, a Japanese couple contracted an Indian surrogate to have a child, using the father’s sperm and the ova of an anonymous donor. The intentional parents divorced before the birth of the child, and the Japanese prospective mother no longer wanted to parent the child, while her ex-husband did. Indian law does not permit unmarried fathers to adopt children, nor would it confer citizenship on the child, since the court could not determine who should be named the child’s mother. Similarly, Japan refused to recognize the parentage of the child, since the birth mother was not Japanese. For a summary of the case see Kari Points, Commercial Surrogacy and Fertility Tourism in India: The Case of Baby Manji, Kenan Institute for Ethics at Duke University, https://web.duke.edu/kenanethics/CaseStudies/BabyManji.pdf.

50 Laura Bertilotti, “The Prohibition of Surrogate Motherhood in France,” New York University Journal of International Law and Politics Online Forum, 31 January 2012, http://nyujilp.org/the-prohibition-of-surrogate-motherhood-in-france-2/.

51 Ibid.; Titshaw, “Sorry Ma’am, Your Baby is an Alien,” 52–53. In April 2011, France’s Cour de Cassation confirmed an earlier decision, first rendered in 2008, annulling the birth certificates and thus denying French citizenship to two children who had been born in California under a surrogacy arrangement. While the children do have American citizenship, France does not recognize them as the legal children of their French parents, nor is their surrogate mother a parent. The parents subsequently appealed the decision to the European Court of Human Rights and received a positive outcome in June 2014. See “Judgments Mennesson v. France and Labassee v. France—Legal Recognition for Children Born Following Surrogacy Arrangements Abroad,” http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4804617-5854908#{%22itemid%22:[%22003-4804617-5854908%22]}.

52 United Nations General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations Treaty Series, vol. 157, at 3, Article 35.

53 Mohapatra, “Stateless Babies and Adoption Scams.”

54 Ibid. at 416.

55 Ibid. at 417.

56 Ibid.

57 See Brown, Wendy, “Liberalism’s Family Values,” in States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995); Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988); Mary Shanley, “Marriage Contract and Social Contract in Seventeenth Century English Political Thought,” Western Political Quarterly 32, no. 1 (1979): 79–91; Jacqueline Stevens, States Without Nations: Citizenship for Mortals (New York: Columbia University Press, 2010).

58 Stevens, Reproducing the State.

59 Ferguson, All in the Family at 15.

60 Ibid. at 23.

61 Ibid.

62 Ibid. at 24.

* My thanks to Leah Ward for her research assistance and to Peter Nyers, Kate Bedford, Sally Sheldon, Robert Leckey, Eric Adams, and two anonymous reviewers for their encouragement and advice on various elements of the argument. Any errors, of course, are solely attributable to me.

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Canadian Journal of Law and Society / La Revue Canadienne Droit et Société
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