Citizenship by Descent and Surrogacy Lawyer · Toronto

Who this is for

This page is for Canadians with children born or adopted abroad, including through surrogacy or other assisted human reproduction, whether the family lives in Canada, Türkiye or elsewhere, and for people with a Canadian parent or grandparent who may be citizens without knowing it since December 15, 2025. It is also for permanent residents planning a surrogacy abroad, whose child usually comes to Canada through sponsorship rather than citizenship.

The best time to call is before you sign with a clinic. Most of these files turn on documents created at the birth, and once the birth is registered they are hard to change.

How citizenship by descent works now

Under paragraph 3(1)(b) of the Citizenship Act, a child born outside Canada is a citizen if a parent, other than an adoptive parent, was a citizen at the time of the birth. A certificate proves that citizenship; it does not create it. The date matters: a parent who becomes a citizen by naturalization after the birth, even by a few days, does not pass citizenship to that child.

The first-generation limit blocked this for a second generation born abroad, until the Ontario Superior Court of Justice declared key parts of it unconstitutional under the Charter in Bjorkquist v. Canada (Attorney General), 2023 ONSC 7152. The government did not appeal.

Parliament responded with Bill C-3, An Act to amend the Citizenship Act (2025), which received Royal Assent on November 20, 2025 and came into effect on December 15, 2025:

• Born or adopted abroad before December 15, 2025: IRCC says people who would have been citizens but for the first-generation limit or other outdated rules are now Canadian. Children adopted abroad by a citizen before that date can apply for a grant.

• Born or adopted abroad on or after December 15, 2025: if the Canadian parent was also born abroad to a Canadian parent, or became a citizen through an adoption grant, citizenship passes only if at least one Canadian parent spent at least 1,095 days in Canada before the birth (subsection 3(3)) or adoption (subsection 5.1(4)). Children whose Canadian parent was born in Canada or naturalized are not affected.

The days are cumulative, visits included; IRCC’s form CIT 0555 explains the count. Families of Crown servants posted abroad have an exception.

Surrogacy and assisted human reproduction: who counts as a parent

Since July 2020, IRCC has recognized two kinds of parent, as its instructions on assisted human reproduction and proof of citizenship guide explain:

• A biological parent: the parent has a genetic or gestational connection to the child. A Canadian father whose sperm was used qualifies even if only the surrogate is on the birth certificate, and so does a Canadian mother who carried a pregnancy with a donor egg.

• A legal parent at birth: the parent, biological or not, is named on the original birth certificate or in birth records from the time of the birth, such as a pre-birth order, a court order, the surrogacy agreement or hospital records. Adoptive parents, even those recognized right after birth, and legal guardians do not count.

If no Canadian parent has either connection, IRCC’s instructions say the child is not a citizen by descent. The 1,095-day test applies to surrogacy births too.

IRCC’s document checklist asks for the child’s birth certificate from the original authority, naming the Canadian parent, and proof of that parent’s citizenship. If the Canadian parent is not on it, IRCC asks for birth records naming that parent at the time of birth (pre-birth orders, court orders, surrogacy agreements, hospital records) and an explanation; adoption orders do not count here. If the birth certificate was changed or replaced after the birth, the checklist asks you to explain that too. IRCC may also suggest DNA testing as a last resort (see our surrogacy article).

That is why we plan the birth record before the baby is born. Before you sign with a clinic, your lawyer in that country should confirm in writing whether local law names the intended parents on the original birth certificate, whether a pre-birth or parentage order is available, and what the surrogate must sign. Some countries register only the surrogate and the father. When donor egg and donor sperm are both used and no Canadian parent carries the pregnancy, the legal-parent documents are the entire claim, so we read them before the transfer, not after the birth.

Proof of citizenship, or a grant?

If your child is already a citizen, you apply for a citizenship certificate (proof of citizenship). Where the 1,095-day test applies, you add form CIT 0555 and records of the parent’s presence. You can apply online for a child only if one of the child’s parents was born in Canada on or after February 15, 1977, or naturalized on or after April 17, 2009. Every other family files on paper, which includes a family whose only Canadian parent was born abroad.

Online, choose the electronic certificate: it arrives in your IRCC account instead of travelling by mail through a Canadian office abroad. On paper, precision matters from the first page. Since March 1, 2026, Canadian offices abroad no longer check proof applications for completeness, and IRCC’s intake instructions reject a paper application that arrives without the completed form, the required signatures, compliant photos or the fee receipt. The file must also prove each generation with documents from the original authority, because third-party records alone are not enough.

A grant is for someone who is not already a citizen. A child adopted abroad by a Canadian applies under section 5.1, if the adoption meets its conditions. A minor permanent resident whose parent is a citizen can be granted citizenship under subsection 5(2). Discretionary grants under subsection 5(4) are for exceptional cases.

When your child is not a citizen

This happens when no Canadian parent has a biological or legal-at-birth connection, when the parent was a permanent resident at the birth or became a citizen later, or when a parent born abroad cannot show 1,095 days. The usual route is to sponsor the child for permanent residence as a dependent child. IRCC must accept the child as your biological or adopted child, so parentage evidence still matters. Permanent residents must live in Canada to sponsor; citizens abroad must show they will live in Canada when the child becomes a permanent resident. See our family sponsorship practice and surrogacy guide for permanent residents.

In the surrogacy sponsorships we see, four things set the pace:

• The court decision on custody or parentage: if a court in the country of birth is still deciding, we wait for the judgment before filing. It is the most important document in the file.

• The surrogate’s consent: we take it on IRCC’s form IMM 5604, signed in front of a notary public as the form requires, with a copy of her identity document, before she is out of reach. Where local notaries cannot sign a Canadian form, we have the notarial certificate bound to that exact form.

• The whole story, told once: a personal statement covering why surrogacy, why that country, the clinic and lawyers involved, the birth, the custody steps and who cares for the baby while IRCC decides. We have seen a sponsorship draw a procedural fairness letter with a long document list only because the surrogacy was not explained at the start.

• DNA on IRCC’s letter: IRCC may ask for DNA after the application is filed. The test runs through an accredited laboratory from that letter, so a test done earlier, for example for another country’s passport, does not replace it.

While IRCC decides, the baby can wait abroad with family, with a caregiver’s letter on file, or visit Canada on a visitor visa or eTA if the baby’s passport allows it. Subsection 22(2) of IRPA lets a visitor plan to immigrate later, but the officer must be satisfied the child will leave at the end of the stay, and infant surrogacy files get close scrutiny before parentage is confirmed. Once the child is a permanent resident and a parent is a citizen, a grant under subsection 5(2) completes the path.

Common reasons for refusal or delay, and how we build against them

• Missing evidence: only the surrogate is on the birth certificate and nothing else ties the Canadian parent to the birth, or the 1,095-day count rests on memory. We collect the full birth record, confirm when the parent became a citizen, and count days from records before filing.

• Inconsistent documents: names, dates or parents differ across the birth certificate, surrogacy agreement, hospital records and court orders, or a translation lacks the translator’s affidavit or was done by a relative, which IRCC does not accept. We file the original record and explain each difference (see why every document needs a story).

• Minimizing the surrogacy: we disclose it fully from the first page. Surrogacy is not the problem; hiding it is.

• The wrong route: a visitor visa for a child who may already be Canadian, or a proof application where a grant or sponsorship is needed. Visitor visas are for foreign nationals, so a refusal for a Canadian baby says nothing about citizenship, and asking IRCC to reconsider it only costs time. If one family member’s application is incomplete, IRCC can return them all. We confirm the route first.

• A paper package rejected at intake: a missing signature, a photo that does not meet IRCC’s specifications or a missing fee receipt now ends a paper application at the door. We check each one against IRCC’s requirements before anything is mailed.

We answer IRCC’s concerns through procedural fairness and reconsideration. A citizenship decision can be challenged by judicial review in the Federal Court, with leave, within 30 days of learning of the decision (section 22.1).

How the process works with us

It starts with an online consultation, booked at cal.com/blacksyimmigration. Before the call, we send you a few questions: whether each parent is a citizen or a permanent resident and how the citizen became one, whose egg and sperm are used, who will be named on the birth certificate, whether a court has ruled on parentage, and where the baby is or will be. The hour then goes to strategy instead of fact-gathering, and afterwards you receive a written summary of our analysis, the steps in order, and the forms and links you need.

If we take the file, you complete a secure online intake, we open a shared document folder, and we build a checklist for your file. You deal directly with our lawyer, Ahmet Faruk Ocak. There are no middlemen. We communicate by email, so every instruction and decision is documented. Most of the work happens online, in English or Turkish, and we can meet in person in Toronto by appointment.

We map the family tree and the birth against the Act, gather the evidence, prepare the application and a cover submission, request urgent processing where justified, and answer IRCC’s letters. We work alongside your family lawyer in Canada and your lawyer in the country of birth. We tell them exactly what IRCC will look for in the birth registration, parentage orders and consent documents; advice on their country’s law stays with them.

Our fee is a flat fee agreed in writing before you hire us. You can pay it in full or in two instalments. It is held in trust and earned at set milestones. Government fees are separate, and HST applies to clients resident in Canada.

What happens next

Certificate, then passport

IRCC’s guidance on the 2025 changes sets the order: citizenship certificate first, then the child’s passport application from abroad, which relies on it. The passport application needs the parents’ signatures, two photos and a guarantor who has known you personally for at least two years, so line up the guarantor early. Citizens, including dual citizens, need a valid Canadian passport to fly to Canada. IRCC’s special authorization for dual citizens with an imminent flight covers only people who already had a certificate or a Canadian passport, or who were granted citizenship after permanent residence, so it does not help a newborn.

Timing

Proof of citizenship is slow right now. The processing time IRCC posts for a new proof of citizenship application was about 33 months in its September 3, 2026 update. For a minor living outside Canada and the U.S., IRCC adds 6 to 8 months when the application goes straight to Sydney, Nova Scotia, and 3 to 4 months of mailing time when you apply through a Canadian office abroad. You can ask for urgent processing; moving a minor child born abroad to Canada is one of IRCC’s listed reasons. The request needs a letter and proof, such as a doctor’s note or a travel booking, and IRCC does not promise a date. Where possible, we start before the birth. To begin, book an online consultation at cal.com/blacksyimmigration and bring the birth record, court or hospital documents and the parent’s proof of citizenship.

Frequently asked questions

Is my baby born through surrogacy abroad already a Canadian citizen?

Possibly. Three things decide it. First, a Canadian parent must be a biological parent, meaning a genetic or gestational connection, or the legal parent at birth, named on the original birth certificate or birth record issued at the birth. Second, that parent must have been a citizen when the baby was born. Third, if the baby was born on or after December 15, 2025 and the Canadian parent was also born abroad to a Canadian parent (or became a citizen as an adopted person), at least one Canadian parent needs 1,095 days of physical presence in Canada before the birth. If all three are met, the baby is a citizen from birth, and you apply for proof.

We are permanent residents, not citizens. Can our baby still come to Canada?

Yes, through sponsorship rather than citizenship. A permanent resident does not pass citizenship to a child born abroad, so a parent who lives in Canada sponsors the baby as a dependent child. Before leaving the country of birth, collect the custody or parentage judgment, the surrogate’s notarized consent on form IMM 5604 with a copy of her ID, the clinic and hospital records, and the baby’s passport. IRCC may ask for DNA after filing. Once the child is a permanent resident and a parent has become a citizen, the child can be granted citizenship under subsection 5(2).

Should we wait until one of us is a citizen before the baby is born?

If the dates allow it, the route changes completely. A child born abroad is a citizen by descent only if a parent was already a citizen on the day of the birth, and a naturalized parent becomes a citizen at the oath, not when the application is filed or approved. A baby born before the oath has to be sponsored instead and can be granted citizenship later. If you are close to eligibility, we look at the dates with you before a transfer is scheduled.

The Canadian parent has no genetic link to our baby. Can the baby still be Canadian?

Yes, if that parent is the legal parent at birth: named on the original birth certificate or in birth records from the time of the birth, such as a pre-birth order, a court order, the surrogacy agreement or hospital records. IRCC accepts that with or without a genetic or gestational link, and a mother who carried a donor-egg pregnancy is a biological parent anyway. Say it plainly in the application, because claiming a genetic link that does not exist invites a DNA request the file cannot pass. An adoption order does not help here. If neither parent has either link, the child is not a citizen by descent, and we plan sponsorship or adoption instead.

What counts toward the 1,095 days?

Days the Canadian parent was physically present in Canada before the child’s birth or adoption, added together. IRCC’s calculation form (CIT 0555) looks at the whole period from the parent’s own birth, so childhood years, studies, work and family visits can all count, and IRCC’s own example counts both the day of arrival and the day of departure. Days after the birth do not. IRCC warns that time serving a sentence, such as imprisonment, probation or parole, may not count, with some exceptions. Evidence can include school and employment records, T4 slips, passports and entry or exit records, leases, government records, and affidavits from people or organizations who can confirm the presence, with their contact details. Affidavits cannot come from the applicant or the applicant’s family, even a relative who is a lawyer or notary.

I was born abroad before December 15, 2025 to a Canadian parent. Am I a citizen now?

In most cases, yes. IRCC says people born abroad before that date who would have been citizens but for the first-generation limit or other outdated rules are now Canadian. Your parent must have been a citizen when you were born; if your parent was granted citizenship only after your birth, you are not a citizen through that parent. The way to be sure is to apply for a citizenship certificate, and a claim that runs through a grandparent needs documents from the original authority for every generation. If you applied under IRCC’s interim measure, IRCC says it will process that application under the new rules, with no need to reapply. If you do not want Canadian citizenship, IRCC offers a simplified way to renounce it.

Will IRCC require a DNA test?

Not always. If the Canadian parent is the legal parent at birth, a genetic link is not required. DNA becomes relevant when you rely on a biological connection that the documents do not show, for example when only the surrogate appears on the birth certificate. IRCC’s instructions treat DNA testing as voluntary and as a last resort, but declining can leave the relationship unproven. The process starts with IRCC’s DNA letter, which sets a deadline: you choose a laboratory accredited by the Standards Council of Canada, pay the costs, and give samples under a chain-of-custody process, supervised abroad, with results of at least 99.8% accuracy. We wait for that letter rather than ordering a private test, and if the deadline is too short, we ask for more time before it passes.

Can my baby travel to Canada before the certificate and passport arrive?

Usually the baby needs the Canadian passport first. Canadian citizens, including dual citizens, cannot use an eTA and need a valid Canadian passport to fly to Canada, and a passport for a child born abroad needs the citizenship certificate. A baby who is also a U.S. citizen can fly on a valid U.S. passport, and by land or sea a child 15 or under can return with the original citizenship certificate. Visas are for foreign nationals, so a visitor visa is the wrong tool for a child who is already Canadian. If the trip is urgent, ask IRCC to process the certificate urgently and contact the Canadian office abroad early: IRCC says temporary passports and emergency travel documents are issued only under strict conditions, case by case. Plan travel around the certificate.

We applied for a visitor visa for our baby and it was refused. What now?

If the baby may already be Canadian, leave the refusal alone. Visitor visas are for foreign nationals, so the refusal does not decide citizenship, and a reconsideration request or a second visa application only uses time. File the proof of citizenship application with an urgent processing request, prepare the passport application, and contact the Canadian office abroad about travel. If the baby is not a citizen, for example because the parent was a permanent resident at the birth, a visitor visa can still fit a sponsorship plan, and we read the refusal before anything is filed again.

Will a Canadian application affect our baby’s other citizenship?

That is a question of the other country’s law. Some countries do not allow dual citizenship, and IRCC’s own guide tells applicants with that concern to ask that country’s embassy, high commission or consulate. We raise it at the start, ask your lawyer there whether anything has to happen before the Canadian filing, and set the timing around the answer.

Do we also need a lawyer in the country where the baby is born?

Usually, yes. The birth registration, any parentage or custody order, the surrogate’s consent and the baby’s permission to leave the country are governed by local law, and some countries restrict surrogacy itself. We tell your local lawyer exactly what IRCC will look for, review their drafts from the Canadian side, and leave the local-law advice to them.