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: Delhi HC considers Centre's support for same-sex medical nomination
In a significant development for LGBTQIA+ rights in India, the is examining the Union Government's affidavit supporting the nomination of same-sex partners to make medical decisions for incapacitated adults. The Centre has told the court that there is no medical or ethical rationale to exclude a partner merely on account of sex, gender, or sexual orientation, and that such an arrangement can be accommodated within the existing legal framework. The case, filed by Arshiya Takkar, highlights the legal vacuum that leaves non-heterosexual couples without the ability to provide critical medical consent for each other.
Background: A Personal Struggle for Recognition
The petition was moved by Arshiya Takkar, who has been in a relationship with her partner since 2015. The couple married in New Zealand in 2023 and have lived together in Delhi since 2018. Takkar's plea underscored a chilling reality: in the event of a medical emergency, she could be legally powerless to make decisions for her partner, despite their long-term commitment and cohabitation. The current regulatory framework—Clause 7.16 of the
(Professional Conduct, Etiquette, and Ethics) Regulations, 2002—mandates consent from a
"husband or wife, parent or guardian in the case of a minor, or the patient himself."
Same-sex partners fall outside this enumerated list, creating a stark disparity.
The petition argued that this "" violates constitutional guarantees under , as it discriminates on the basis of sex and sexual orientation, following the 's landmark decision in . It also pointed to the 's earlier direction for a high-powered committee to address LGBTQIA+ couple entitlements, including recognition as "family" for medical decision-making, yet no expeditious measures had been taken.
Centre's Affidavit: A Logical and Tailored Extension
In response, the
and the
(NMC) filed a joint affidavit that marked a noteworthy shift in governmental stance. The affidavit stated that permitting a competent adult to nominate his or her partner, including a partner in a non-heterosexual or queer relationship, to take medical decisions in the event of incapacity is
"substantially capable of being accommodated within the existing legal and ethical framework."
The Centre elaborated:
"Where a competent adult has nominated or otherwise authorised his/her partner to act on his/her behalf in the event of incapacity, there appears to be no medical or ethical rationale for excluding such person merely on account of the sex, gender or sexual orientation of the partners or because their union does not fall within the conventional understanding of marriage."
This statement, subject to
"appropriate safeguards and the applicable law,"
reflects a recognition that relationships of care and mutual responsibility extend beyond formal marital or blood ties.
The affidavit further relied on Clause 7.16 itself, arguing that it should be read "
" with the existing legal framework to avoid exclusion. It also noted that in the absence of prior nomination, a partner may be considered a
"
"
for medical decision-making, subject to verification and safeguards.
Legal Implications: Autonomy, Dignity, and Equality
The Centre's submission carries profound constitutional implications. It explicitly acknowledges and respects the constitutional guarantees of dignity, privacy, autonomy, equality, and individual choice available to all persons, including members of the LGBTQIA+ community. The affidavit states that the government's response is not intended to question the constitutional protection available to persons in queer relationships.
The petition's legal foundation rests on the argument that the existing regulatory framework creates a "" and violates the fundamental right to life and personal liberty under , which includes the right to live with dignity and autonomy in personal relationships. The plea contends that the discriminatory classification based on sexual orientation, privileging heterosexual relationships, lacks any reasonable basis and violates .
The court, presided over by Justice Swarana Kanta Sharma, had earlier questioned the Centre on why same-sex partners should be denied the choice to give medical consent for each other if they have the right to relationship and live together. That query foreshadowed the government's eventual stance.
Impact on Legal Practice and Healthcare
If the accepts the Centre's position and directs the framing of guidelines, it could fundamentally alter how hospitals and doctors handle medical consent for LGBTQIA+ patients. Currently, same-sex partners often face barriers in intensive care units, emergency rooms, and during end-of-life decisions. A formal recognition of —a key alternative prayer in the petition—would provide a straightforward legal instrument for couples to document their wishes in advance.
The case also dovetails with broader debates on the recognition of queer relationships in India, especially after the 's refusal to legalise same-sex marriage in . While that judgment left many questions unanswered, it did not foreclose the possibility of incremental legal victories in specific domains like medical consent, inheritance, and tenancy rights.
The NMC, as the regulator of medical ethics, may need to amend the 2002 Regulations to explicitly include "partner" as a category of persons from whom consent can be obtained. Alternatively, an administrative circular or guideline could provide immediate relief pending legislative changes.
Looking Ahead: The Next Hearing
The petition is scheduled for hearing on —a date that seems distant but may be a typographical error in reporting. Nonetheless, the Centre's affidavit has set the stage for a potential landmark ruling. The court will now consider whether to direct the government to frame formal guidelines or issue a declaration that is sufficient for same-sex partners.
For legal professionals, this case underscores the growing judicial and executive recognition of LGBTQIA+ rights within the framework of . It also highlights the importance of advance care planning and the role of statutory interpretation in achieving equality. The outcome could serve as a model for other jurisdictions grappling with similar issues of medical consent and non-traditional family structures.
Conclusion
The 's consideration of the Centre's supportive affidavit marks a hopeful step toward bridging the gap between constitutional promises and lived realities for same-sex couples. By affirming that patient autonomy and dignity transcend marital and heterosexual norms, the government has opened a door that many had thought firmly shut. The final judgment, when it comes, may well be remembered as a milestone in India's journey toward inclusive healthcare and equal citizenship.
