Gay men who become parents through surrogacy should be recognised as co-fathers on the birth certificate, a NSW parliamentary inquiry has been told.

If [two homosexuals] are raising the child, it is in the interests of the child that both their parents are included. They are the ones they know as parents and who are the only parents that they know in that household. The reality is that they are the parents regardless of what other people or society thinks, Law Society of NSW solicitor Alexandra Harland told the altruistic surrogacy inquiry last week.

The current arrangement means gay men who seek a surrogate mother overseas have problems when they bring the child back to Australia, UTS law professor Jenni Millbank said.

Technically under the literal wording of the Act their status is as a sperm donor. The birth mother is the legal mother of the child and yet they have gone through the process in California, or a number of other states, which severs her parental status. What you have is a child who has no parent and who is stateless.

Immigration officials had been ignoring the law to allow the genetic father to be treated as the legal father, she said.

Liberal powerbroker David Clarke tried unsuccessfully to get Harland, Millbank and departmental officials to agree that same-sex parents might not be in the best interests of a child, citing arguments from the ethics body of the Australian Catholic University.

Representatives from the Anglican diocese of Sydney agreed it was up to same-sex parenting lobbyists to prove that it will not be detrimental.

The best interests of the child may be to not be born at all; to not even exist. The reality is man, woman, child. There is a certain level of historical evidence on that point, Anglican Reverend Andrew Ford said.

He added that children from same-sex families or families with more than two parents can suffer from identity confusion because it wasn’t the norm.

The Australian Christian Lobby, Australian Family Association, Family Voice and the Catholic diocese of Sydney were also concerned only heterosexual married parents could create a stable environment for children.

But Department of Community Services officials said there was no evidence having same-sex parents creates a risk of harm to a child, and it was irrelevant to them whether a household was a single parent, a same-sex or an opposite-sex couple.

While people may say that the best arrangement is going to be a mother and father raising the child, it is hard to deny that we have a long history of grandmothers, for example, effectively doing the raising of the child, DoCS director of legal services Roderick Best said, citing the example of US President-elect Barack Obama.

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