Suzi Denton
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Date Published:16 Jan 2019 Last Updated:04 Aug 2021

Canadian father is finally able to return home from Kenya with his twins after immigration dispute

Fertility Law

Suzi Denton, our expert in Fertility law, has published the below article for BioNews, a weekly medical-legal publication. Suzi reports on the recent case of a Canadian single father, Joseph Tito, who had twins through surrogacy in Kenya. Tito was making arrangements to travel home when he discovered that the twins were not automatically entitled to Canadian citizenship, and he faced a lengthy wait in Kenya while he waited for the immigration issues to be resolved. He has recently returned to Canada with his twins, and is calling for Canadian immigration law to be amended. This case shows how important it is to get legal advice before embarking on international surrogacy, to highlight any immigration issues you might face after the birth, and to put a plan into place.

A single father whose twin girls were born through gestational surrogacy in Kenya has been allowed to return home to Canada with his children.

Joseph Tito’s twins, Stella and Mia, were born in Mombasa, Kenya, in November 2018. Tito was making arrangements to return to Canada with his children in December when he was told by the Canadian High Commission that due to a quirk in Canadian immigration law, the twins did not automatically qualify for Canadian citizenship. He would therefore not be able to take them home until their citizenship status had been resolved.

The ‘one generation’ rule, which came into force in Canada in 2015 when the Citizenship Act was amended, means that Canadian citizens who are born outside of the country are not able to pass on their citizenship to their children if their children are also born outside of Canada. As Tito was born in Italy to a Canadian mother, his children did not automatically become Canadian citizens at birth.

Tito has called for the rule to be changed: ‘I think it needs to be amended for people who live in Canada and who are Canadian,’ he told Global News.

There followed a period of uncertainty for Tito and his new family, as he was told that he may be facing a wait of between six and 12 months before he would be able to return home with his children, while the twins’ applications for permanent Canadian residency were being processed.

Tito began the permanent residency application process in late December, sponsoring the applications using his citizenship status. He then discovered that he could apply for temporary resident visas for the twins, which enabled him to travel home while the permanent applications were pending.

Tito’s situation attracted international media attention, and according to CityNews, he believes this is why the situation was resolved quickly. On his return to Canada, he told CityNews: ‘I think it’s surreal. I still can’t believe I’m here after all this time.’

Immigration attorney Joel Sandaluk agrees that the rule is ‘problematic’. He told CBC News: ‘It creates two separate classes of Canadian citizenship – one which is inherently more valuable than the other.’

Sandaluk also described the rule as ‘arbitrary’, as ‘Certain Canadian citizens are able to pass along their citizenship to their children if they’re born outside of Canada whereas other Canadian citizens are not’, he told CBC News.

Tito offered advice to others who are considering embarking on an international surrogacy arrangement. He told Global News: ‘Just research everything. Research whatever country you’re in, research their laws, research our laws.’