Do our children automatically become Canadian Citizens by birth?

From time to time we get a number of questions and concerns around childbirth in Canada. “What is my child’s status if I give birth in Canada as a temporary resident?” “Can I give birth to my child in Canada and then go back to my home country?” “Will pregnancy affect my immigration application?”

So I decided to break this down so that there are some definitive answers to some of the most common questions that we hear.

Child Birth in Canada

Canadian citizenship can be obtained by childbirth in Canada. This is on the principle of the term “jus soli” or, “right of soil” which we will discuss in more detail a little later in this blog. Birthright citizenship is the legal right to citizenship for all children born in Canada’s territory, regardless of their parents' origin or status. Canada is one of the only a few countries in the world that recognizes birthright citizenship.

If a child is born in Canada, the child is automatically a Canadian citizen as they are given a Canadian birth certificate when they are born. Even if the parents of the child are not Canadian citizens or permanent residents, the child still becomes a Canadian citizen. This process allows foreign nationals to come to Canada, deliver their child, and have their child be a citizen of Canada. This process has been nicknamed “birth tourism” and we will address this in greater detail later in this article, but first we would like to address some basics that are important to understand.

Since the child is automatically a Canadian citizen when they are born, they have all the rights and benefits that every other Canadian citizen has. The Canadian child will receive Canadian citizenship at birth byways of a Canadian birth certificate. This automatically means the child will receive Canadian benefits like any other Canadian, such as the right to reside in Canada at any time without a visa and benefits like free education, social benefits, and healthcare.  

What it means to be a Canadian Citizen

The Citizenship Act, 1985 (the ‘Act’) describes who and who is not a Canadian Citizen.

Under sections 3 and 4 of the Act, someone is generally a Canadian Citizen if:

• They were born in Canada;
• They became a citizen through the naturalization process; or
• They were born outside of Canada and one of their parents were born in Canada or naturalized in Canada before they were born.

A person may be a Canadian citizen if:

• They were born outside of Canada between January 1, 1947, and April 16, 2009, to a Canadian parent who was born outside of Canada to a Canadian parent (a second-generation born outside of Canada); or
• They were adopted outside of Canada by a Canadian parent after January 1, 1947.

Exception

The Act provides the right of all people born on Canadian soil to Canadian citizenship. The exception to this is children born to foreign diplomats (subsection 3(2) of the Act). A foreign diplomat is someone who is an official representative of a country abroad. If you are a child of a foreign diplomat, please note that this section does not apply, and you are not granted Canadian citizenship automatically when born in Canada.

Jus Soli

Jus soli is Latin for “right of soil.” This term refers to birthright citizenship in Canada and the right of anyone born in the territory of Canada to Canadian citizenship. This is the primary way to gain citizenship in Canada. You’re born in Canada, you get Canadian citizenship. If you are born on Canadian soil, you automatically get Canadian citizenship, no matter the status or origin of your birth parents.

Fun fact: Canada and the United States are the only developed countries in the world that follow the law of jus soli.

Jus Sanguinis

The alternative to jus soli is jus sanguinis, which is the Latin term for “right of blood”. This term refers to citizenship by the nationality of one or both parents, regardless of the territory you were born. This means that you are granted citizenship in Canada if one or both of your parents are Canadian citizens. If you are born outside of Canada and have one or more Canadian parents, you are still entitled to Canadian citizenship. 

Many countries follow jus sanguinis principle with respect to citizenship as is the case for many Middle Eastern. There are many people who will live their whole lives in their surrogate home and are/will not be able to stay except as a temporary resident no matter what they do except if they are to marry a national from that particular country. We find a number of people will look to Canada as an example after working for many years in some countries in order to ensure that they can provide their children access to a better life as opposed to returning to their home country.

Pregnancy and Immigrating to Canada 

There is always the concern of being pregnant while you are applying for permanent residency, temporary residency, or citizenship in Canada, and your future child’s status. No matter which immigration pathway you are applying for, if your child is born in Canada, they will automatically get citizenship, so this should cancel out some of that concern if you are or will be in Canada at the time of the child’s birth.

The right of Citizenship is not stated in the Immigration Refugee Protection Act (IRPA) in regard to temporary residency and pregnancy. This means that someone cannot be refused a temporary resident visa based on their intent to give birth in Canada. Although, a pregnant woman cannot conceal her intention to give birth in Canada as this crosses into another area of the law which is quite serious. Anyone upon examination at the border or for the fact of an immigration application who misrepresents their intention to can be subject to penalties which include being asked to leave Canada and face various types of bans which can extend up to 5 years.

There are different rules in place regarding your immigration application and pregnancy. This article focuses on giving birth in Canada and rules around citizenship. Just remember that you should always disclose to the visa officer that you are pregnant. As discussed above, you cannot be found inadmissible for being pregnant or intending to give birth in Canada, but you could be found inadmissible for misrepresentation of yourself and your immigration application.

What is Birth Tourism and is it Legal?

Birth tourism is legal in Canada. Birth tourism is the practice where children are born in Canada to foreign nationals, so they receive Canadian citizenship automatically without having to go through the immigration process. Each year, the numbers of non-resident births continue to increase, and this has become a very controversial issue in Canada.

There has been a great deal of concern surrounding birth tourism in Canada as there has been this growing number of pregnant foreign nationals who travel to Canada and give birth to their child. Most parents of these children will return to their home country as a family knowing their child has the option to return to Canada in the future to study or work.

As the children are citizens and have this connection to Canada while back in their country of origin, they often later come back to Canada and use the immigration system to sponsor their family. Parents of Canadian born children do not have an easier or better chance of getting Canadian permanent residency or Canadian Citizenship, simply because their child is a citizen. They still have to apply for residency or be sponsored by their child. If the parent wishes to stay in Canada after giving birth to their child, they must have a valid permit and are still subject to meeting the immigration requirements. In actual fact having a child does not have any advantage to the parents until later on in life.

There have been many proposals to end birth tourism by the Canadian government by enacting legislation to only grant birthright citizenship if at least one parent is a Canadian Citizen or permanent resident of Canada, thus birth tourism is and will continue to become very controversial in Canada.

Some argue that birth tourism is used to gain access to Canadian benefits such as healthcare, education, and social programs, which may take away this access from other citizens and Permanent Residents. Many believe that birth tourists take advantage of Canada’s benefits for their own advantage.

As discussed earlier, it is common for birth tourists to give birth in Canada, get their children status, and then go back to their country of origin. This takes advantage of the immigration system as many come back to Canada in the future, with their Canadian citizenship status, without needing to go through the immigration process that every other immigrant has to. It is also often pointed out that birth tourism affects hospitals because of budget planning.

The biggest issue and where this really becomes heated is that there is a strong argument that this growing trend takes away from Canadians and their right to their own health care system. Hospitals do not plan for birth tourism in their budgets, therefore many concerns and disagreements arise when these numbers grow. Dr. Fiona Mattatall, an obstetrician and gynaecologist from Calgary, Alberta, stated in an interview, “our (health) system is not built to provide services for people from out of the country” (CTVNews, 2016) The growing number of birth tourists can negatively affect the healthcare system. From budgets to backlogs, it is argued that the negative effects of birth tourism outweigh any positives. Birth tourism can be costly to taxpayers and the debate surrounding ending birthright citizenship should be a democratic decision of all Canadians.

Richmond Hospital in Vancouver, British Columbia is home to the growing birth tourism industry in Canada. There is a lot of controversy around their practice. Though the practice is technically legal, many see this as an exploitation of both the healthcare and immigration system. Vancouver Costal Health has made it clear that foreign nationals are subject to very high prices and if these payments are not made, they will not receive the healthcare services. In the most severe of cases, they have filed a $1 million civil claim.

against a foreign national who did not pay Richmond Hospital after she gave birth back in 2012. Birth tourism and this case have created a negative image of birth tourism in the media. In 2018, a petition was created and protests were held to call the federal government to ban birth tourism on a national scale.

With any issues there is always another side to the story and in this case that is no different. There are others who believe birthright citizenship financially benefits the immigration system, helps decrease the number of stateless people in Canada, and financially supports the healthcare system. Some argue against the fact that birth tourism can put a strain on the healthcare system and creates a backlog and lack of resources and it actually brings in revenue and this money can be put back into the public healthcare system.

Healthcare workers and government officials do recognize that Canadians come first, but still have the obligation as practitioners to serve all patients. MP Deepak Obhrai of Alberta stated that “we cannot choose who is going to be Canadian and who is not going to be a Canadian, it is a fundamental question of equality” (Conservatives' Policy Convention, 2018). Some further argue that because birth rates in Canada are so low, birth tourism can present a benefit to the Canadian birth rates.

Either way that you sit on this very polarizing issue, it is very important to know that while Canadians are always willing to step up and help out (and in a lot cases sometimes to their own detriment) you will find that public opinion will surely change very quickly when there is a sense that people are somehow taking advantage of the system.

Personally, I am never in favour of people taking advantage of the system or circumventing rules in any illegal manner, however while it is easy to judge someone based on perceptions that we may have I will never judge anyone for trying to make a better life for themselves and their family. While I will not participate in taking advantage of the situation myself, I will nevertheless not fault people who are acting within the confines of the law and using any open loopholes to make a better life. It is the job of the government to close out these loopholes should the electorate feel strongly enough about this issue.

Conclusion

Whatever your stance on birth tourism may be, it is currently legal in Canada. No action to this day has been taken to end birth tourism by the Canadian government and it remains a legal practice.  This is not to say that there will not be any legal changes to this law or anything that could retroactively change this for others. While I feel under the current system this likelihood of retroactive changes is small, it is not incomprehensible.

From pregnancy during your immigration application, to questioning your child’s status, to the negative and positives of birth tourism, this post has outlined the many concerns about childbirth people have when immigrating to Canada while addressing what it means to be a Canadian citizen and I hope that we have been able to give you some great insight into this issue.

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