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Assisted Reproduction

After 6 Years Canadian Couple Can Return Home From India With Twins Delivered By A Surrogate

If this does not frighten anyone considering working with a surrogate in India, nothing will:

Their ordeal is over — well, almost.

Six years after a Toronto couple landed in India, had twins through a surrogate and then ran headlong into Canadian bureaucratic red tape after discovering one was not biologically related to them, they can return home with both children. “It’s very good news,” said Michael Battista, the couple’s Toronto lawyer. “It’s hard to understand why this couldn’t have happened earlier but my clients are pleased.”

Battista said Ottawa has issued a citizenship card to the twin who is biologically related to the couple and travel papers to the other child. When the family returns, they will be able to file an application on humanitarian and compassionate grounds for their non-biological child and then a citizenship application. “This definitely is an optimal result for my client,” said Battista. “We always felt that both children were entitled to citizenship and so this is an indirect route for the non-biological child to get citizenship.”

The happy ending came out of the blue. “We were very surprised when the settlement was proposed,” said Battista. “I am not really sure what led to the change in policy on this file.” In India, the couple reacted with disbelief. “After what they have been through, it was a subdued reaction and a little untrustworthy,” said Battista. “They were anxious to know what the details of the settlement were. They are overjoyed now and hoping to return soon.”

The strange story started when the couple travelled to India in 2005 to hire a surrogate because they couldn’t have a child. The eggs were donated by an unknown woman and fertilized by the husband’s sperm; the surrogate was soon pregnant with twins. In March 2006, a boy and a girl were born. The couple went to the Canadian High Commission in New Delhi to apply for proof of Canadian citizenship for the twins in order to bring them home. DNA tests showed the boy was not genetically related, suggesting an error or mixup in the Indian fertility lab.

Until now, the Canadian government has refused to issue citizenship to the boy. Usually, if children born through surrogacy have a genetic link to one Canadian parent, Citizenship and Immigration Canada grants status through family class sponsorship or directly by applying for citizenship. But there is no policy to address a situation where an obvious error has taken place. Errors have occurred in the past and the department is reviewing its policy, but it is unclear when a new one will be introduced.

On Wednesday, Citizenship and Immigration Canada would not comment on the change of heart in this case or if a new policy was in place to deal with surrogacy mixups. “This is the first case I have heard of where there has been a settlement,” said Sherry Levitan, a Toronto lawyer who specializes in surrogacy cases. There have been many surrogacy mixups and not all have happy endings, she said.

India and some eastern European nations are hot destinations for couples hoping to have babies through surrogates.

The couple could have returned to Canada with their daughter but they have refused to abandon the boy they have raised as their son. They have since lived in a city in southern India where they have no family, no friends. The couple, in their 50s, is adamant about keeping their identities hidden due to the stigma attached to surrogacy. It often means that the eggs and/or sperm are donated.

Battista said he did not know when they will return, adding their situation is further complicated by the fact they have been living illegally in India. Once back in Toronto, the couple will have to start their life all over again. “They have been away for six years, the kids don’t know Canada,” said Battista.

“It will be quite a struggle to reestablish.”

What a testament to the character of these parents that they abandoned their life at home to fight for their non-biological child. I am not certain how many people in a similar situation would have simply returned home with their biological child rather than taking such a stand and sacrificing so much in order to keep these non-biological twins together. Such a heart-warming story.


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