Toronto native Joseph Tito was willing to go to great lengths to be a father, but after experiencing difficulty finding a surrogate in North America, he looked elsewhere.
Through an India-based fertility clinic, the Kiran Infertility Center, Tito was matched with a surrogate mother in Kenya. A year and a half later, his twin baby girls were born in Mombasa, Kenya.
Little did he know, however, that a legal technicality around his own citizenship status would prevent him from bringing his babies home.
“It’s just been a nightmare,” Tito told Global News in an interview from Kenya.
The rule that prevents him from bringing his girls back to Canada can be found in the Citizenship Act, which was amended in 2015 to state that a baby born outside of Canada to a Canadian citizen automatically receives citizenship status, but that this perpetuity ends after the first generation.
Tito was born in Italy and came to Canada when he was five. Therefore, because neither he nor his children were born in Canada, the twins are not automatically extended Canadian citizenship.
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“Canadian citizens can pass their citizenship to their genetically related children born abroad, but there is a one-generation limit. If he is the parent who obtained citizenship by being born abroad to Canadian parents, he cannot then pass his Canadian citizenship to the babies,” immigration attorney Patricia Wells explained in an emailed statement.
A spokesperson for Canada’s immigration minister said he couldn’t comment on the matter specifically, but added that every case is treated “very seriously.”
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“With any immigration case involving children, our first priority is to protect the safety and well-being of the children involved,” Mathieu Genest said via email on Sunday. “We understand that immigration decisions can have a serious impact on the lives of individuals and we work with all clients on a case by case basis to ensure a that each case is treated fairly and in accordance to Canada’s laws.”
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International surrogacy is a little-known but growing trend in the western world for hopeful parents looking for a less expensive alternative.
While women in Canada are legally not allowed to receive payment for being surrogates in Canada, but the cost of transferring one embryo generally include attorney’s fees, clinical procedures compensation for surrogate expenses (which is legal), etc. Often times, parents must go through several embryo transfers before the surrogate becomes pregnant.
Tito told Global News that he found surrogacy prices in Canada could surpass US$120,000, though most of the estimates on surrogacy information websites, such as sensiblesurrogacy.com, fall within the C$70,000 to C$100,000 range.
In Kenya, Tito said he has paid approximately US$60,000 (C$81,000), which covered five embryo transfers as well as attorneys and DNA tests.
In addition, several lower-income nations have become popular international surrogacy destinations because of lower costs and a lack of legal restrictions have banned the practice, including Thailand, Nepal and India.
According to Wells, the most effective remedy to this problem is for Tito to sponsor his girls, though he’s been told this process can take between six and 12 months and that he can’t take the babies out of Kenya while it’s ongoing.
Tito explained that he knew about this law in advance and asked the Canadian High Commission in Nairobi whether or not it would pose challenges for him when he returned. While they assured him that he had nothing to worry about, he now realizes they were incorrect.
Beyond the complications around Tito’s own path to citizenship, it may even be impossible to have his girls granted Kenyan citizenship for the purpose of obtaining passports to bring them overseas. Kenyan law states that children born in the country are only citizens if one of their parents is a Kenyan citizen.
While Tito’s daughters were apparently birthed by a Kenyan woman, she is not their biological mother. Rather, an Indian woman selected by Kiran Infertility served as an egg donor for the pregnancy, which prevents the twins from receiving Kenyan citizenship.
In a complex situation such as this one, immigration attorney Robin Seligman admits that the status of the twin girls is not clear.
“You know who the surrogate mother is, you don’t know where the eggs came from and you know who the father is. I have no idea what their status is,” she said, admitting that this may render the girls stateless.
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Seligman said that despite these challenges, the sponsorship process doesn’t need to take as long as Tito was told.
“He can sponsor them as permanent residents because, biologically, they’re his children, and it’s unfortunate that he’s having trouble because that’s a matter of the visa post that’s taking their time, because they could process them very quickly if they wanted to,” Seligman explained.
Seligman also advises anyone considering international surrogacy to research the laws of both Canada and the country in which the surrogacy takes place — as well as the fertility clinic — before beginning the process.”
Seligman warned however that if the girls are without any citizenship status whatsoever, that having them returned to Canada quickly is crucial.
“Those kids could sit there for a long, long time without anything being done.”
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