The use of DNA testing in the context of immigration fits within ongoing general debates related to immigration and citizenship. These debates include the challenge of balancing the control of borders with the right to international mobility, as well as the recognition of non-Canadian normative frameworks and values, such as those related to the concept of family or marriage, within the limit imposed by international human rights standards. There is also a recurring debate in immigration concerning the legitimacy and extent of the selection of immigrants, highly qualified migrant workers, investors, and entrepreneurs. On the one hand, the context of globalization has encouraged mobility of individuals across borders; on the other, for economic and security concerns, countries have tightened their immigration selection criteria (Labelle 2015), for instance, by limiting family reunification and requesting DNA testing. Canada, like many other countries, has been frequently altering the parameters of the “ideal immigrant,” providing changing sets of rules and requirements (Neborak 2013, p. 5).
In 2001, Canada made an important reform in its immigration law by introducing a new immigration bill, the Immigration and Refugees Protection Act (IRPA 2015) (Neborak 2013, p. 5). IRPA’s new regulation introduced the concept of “biological child,” thus restricting family reunification to biologically linked children and setting aside the psychosocial ties in establishing bona fide relationships. This requirement came to create a gap with existent provincial laws that recognize filiation based on non-biological parenthood (Children’s Law Reform Act 1990, sec. 1, 4, and 8; Quebec Civil Code, sec. 552–525), resulting in an unnecessary distinction among children that are Canadian citizens and those that are not. The biological link required in the concept of the “biological child” seems inconsistent with the Convention of the Rights of the Child (Convention of the Rights of the Child 1989, p. 3, s. 10(1)),Footnote 4 in which it is possible to derive a broader understanding of the concept of “family.” Canada must also consider its commitment under the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights in which the right to family reunification is recognized under the right to the protection of the family.Footnote 5
DNA-based identity testing for family can be defined as the
use of technology to establish or rule out a relationship of genetic relatedness between at least two biological samples […] includ[ing] testing to determine the degree of genetic relatedness between two or more persons (e.g., paternity testing) and testing to determine the identity of a person or the remains of a person (Anderlik and Rothstein 2002, p. 215).
CIC DNA policy involves direct paternity or maternity testing using blood samples. To determine kinship, the test looks for shared alleles in the STR markersFootnote 6 of the mother, father, and child. The CIC DNA policy requires results that, from a scientific standpoint, are at least 99.8 % reliable (Citizenship and Immigration Canada 2006, p. 16; Citizenship and Immigration Canada 2013, p. 11). In the immigration context, the use of DNA testing is perceived as providing some advantages over other procedures and means of identification, as it is precise and can establish biological relatedness between parents and children, but also between other family members (Heinemann et al. 2013, pp. 184–185). Two pieces of legislation constitute the federal legal immigration framework in Canada, IRPA and IRPR. However, the recourse to DNA testing is not embedded in the legislation, but rather it is included in CIC’s administrative policies. The Operational Procedure Manual (CIC OP 1) states that:
A DNA test to prove relationship is a last resort. When documentary submissions are not satisfactory evidence of a bona fide relationship, officers may advise applicants that positive results of DNA tests by a laboratory listed in Appendix E are an acceptable substitute for documents. (Citizenship and Immigration Canada 2013, p. 11).
This CIC DNA policy lacks clarity in its scope and application. Consequently, it has been inconsistently enforced. Although DNA testing can certainly be considered necessary in some cases (e.g., when applicants have no other convincing evidence, such as valid birth certificates, to prove a family relation or when even if they have it, its authenticity is questioned by the immigration authorities) (Heinemann et al. 2013, p. 202; Taitz et al. 2002, p. 29; Dove 2013, p. 514), it raises important social, legal, and ethical issues specific to the use of an individual’s genetic information potentially resulting in discriminatory practices, in addition to the broader ongoing socio-political debates on Canadian immigration and citizenship rules.
The use of genetic information outside the health and medical research context can be conducive to genetic discrimination (Joly et al. 2015; Otlowski et al. 2012; Davey 2015). Genetic discrimination can be defined as a differential treatment based on an individual’s or a group’s genetic information or characteristics. In the immigration context, based on the existing literature, case law, and immigration policy documents, such discrimination can take different forms. Some authors have identified certain trends including, for instance, more frequent requests and use of DNA testing in cases involving applicants from certain countries, potentially leading to a discriminatory application of the DNA last resort policy (Baldassi 2007, p. 53; Taitz et al. 2002, p. 25). Moreover, a review of CIC’s 13 public applicant information guides (Citizenship and Immigration Canada 2002) has demonstrated that the possibility of undergoing DNA testing is mentioned only in the information guides addressed to applicants from African countries (Citizenship and Immigration Canada 2014b), without the CIC DNA policy being clearly presented, which makes the information provided unclear and potentially misleading. Whereas the CIC DNA policy seems to suggest the use of DNA testing as a “last resort,” it fails to clarify what constitutes “last resort” and to provide any guideline on the type of cases where it could be justified to suggest providing a DNA test. Furthermore, mentioning in the information guides for African countries that DNA testing may shorten the time to verify the family relationship may mislead African applicants into thinking that they will have a faster processing when in fact, according to the available evidence, they may experience considerable delays. (Canadian Council for Refugees 2011)
Canadian human rights instruments protect all individuals from discrimination on the basis of enumerated traits and characteristics that have historically been associated with exclusion, marginalization and disadvantage, and analogous (i.e., those connected by interpretation to the enumerated grounds) grounds (Canadian Human Rights Act 1985; Charter of Human Rights and Freedoms).Footnote 7 Under section 15,
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
However, current practices using DNA testing in immigration and the genetic or biological link required in the concept of “biological child” could be considered discriminatory if their application results in otherwise unjustifiable distinctions based on national or ethnic origin, race, ethnicity or family, or civil status. Indeed, as previously noted by Baldassi in her analysis of the application of the last resort policies, the current practice of testing most people from certain countries, regardless of the evidence they present in support of their application, is unlikely to pass scrutiny under the Sec. 15 of the Charter (Baldassi 2007, p. 19). Moreover, she also noted that despite the increasing diversity of family structure in Western countries, those nationals are not required to prove their biological link through DNA testing as other individuals from non-Western countries. Indeed, some Western applicants are not asked for DNA samples, despite questionable documentary evidence (ex. birth certificate of a child that has been adopted generally list the non-biological mother’s name) or even explicit proof that the child is not genetically related to the sponsor (ex. assisted reproduction with donated genetic material). (Baldassi 2007, p. 19, 25). Therefore, one of the arguments that could eventually be presented before the courts could concern the discriminatory practice of not affording all applicants the equal opportunity to present proof of relatedness that is neither genetic nor confined to a legal document (Baldassi 2007, p. 19). Given the growing number of Canadian cases where the courts have held that DNA tests ought not to have been requested by CIC officers and the ongoing studies being conducted on this topic, (Ngueng Feze and Joly), there may be evidence supporting the potential violation of section 15.
The introduction of DNA testing in the family reunification process raises procedural, ethical psychosocial, and technical issues leading to erroneous rejection of applications (see Karlsson et al. 2007; Heinemann et al. 2013, p. 185; Karlsson et al. 2007). For instance, rare cases of de novo mutations in the offspring’s DNAFootnote 8 may lead to the erroneous exclusion of maternity or paternity even though a biological relationship exists. (Heinemann et al. 2013, p. 185; Murdock 2008, p. 1523) Irrespective of potential human or technical errors, DNA test results can be devastating for the families involved, as they may cause additional important psychosocial challenges that may require counseling (e.g., a mother having to admit to family members that her child was the product of rape or of an extramarital affair) (Dove 2013). This is particularly important in the context where DNA testing can uncover non-biological paternity unsuspected by the father.
Federal courts and administrative tribunals have had to deal with a substantial number of cases reflecting the multiple challenges previously identified. An extensive analysis of the case law was conducted and revealed inconsistencies leading to an unnecessary level of unpredictability in the outcome of the application of CIC DNA policy to individual cases (Ngueng Feze and Joly). Indeed, Federal courts and administrative tribunals have reviewed some cases where the immigration officer required DNA testing, even though sufficient evidence had been provided or, without allowing the applicant the opportunity to present some other types of evidence. Cost is also an important aspect to consider in a request to undergo DNA testing. Even though the cost of the test has somewhat decreased with time, it may still remain prohibitive for less fortunate applicants. Furthermore, all the expenses associated with the test, such as traveling to sometimes distant places where the DNA samples are collected, need to be taken into account as well.Footnote 9 In several cases, the cost of testing was found to be unduly burdensome, preventing applicants from reuniting with their family. (Heinemann et al. 2013, p. 201; Canadian Council for Refugees 2011)
Given the diverse issues surrounding the use of DNA testing and the lack of clarity in the application of CIC DNA policy raised particularly in case law, a multidisciplinary expert working group met to debate. The following text presents a series of policy points to consider addressing the issues raised by the current DNA testing practice in Canadian family reunification process.