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Medical consent for same-sex partners: seeks Centre's response after year-long delay
The on Thursday sharply questioned the Union government’s failure to respond for over a year to a petition that seeks legal recognition for same-sex partners as medical representatives during treatment. Hearing the matter, a bench of Justice Swarana Kanta Sharma observed that if the law permits same-sex couples to live together, the regulatory framework must reflect that reality, and asked why a between two men should be treated differently from that between a man and a woman.
The petition, filed by Arshiya Takkar—a member of the LGBTQ community who has been in a committed relationship with her partner since 2015—challenges the exclusionary language of the (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Those regulations only recognise a “husband or wife, parent or guardian” as the patient’s for giving consent to medical procedures. The plea argues that this silence on same-sex partners amounts to , violative of Article 15 of the Constitution, especially after ’s landmark ruling in , which held that is an intrinsic aspect of “sex” under the .
A Question of Equality: Can Same-Sex Partners Consent for Each Other?
The core of the legal challenge is the absence of any explicit provision allowing a non-heterosexual partner to act as a medical decision-maker. The petitioner, who married her partner in New Zealand in 2023 and has lived with her in Delhi since 2018, contends that in emergencies—when immediate family members may be unreachable or distant—the inability of her partner to give consent could lead to delayed or denied treatment. The plea seeks guidelines requiring hospitals and doctors to recognise same-sex partners as medical representatives and to permit them access during treatment. Alternatively, it asks the court to declare that a executed in advance by a patient should be sufficient to allow their partner to act on their behalf.
, appearing for the petitioner, informed the court that despite the Centre being given a final opportunity in to file its counter-affidavit, no response had been submitted. The government counsel, who said he had been recently appointed, sought additional time to obtain instructions. The bench noted the one-year gap and expressed its displeasure.
The Court’s Sharp Query after Year of Inaction
“You need to tell me what your stand is. This fight is what for?” Justice Sharma asked, visibly frustrated with the delay. The court also flagged the social difficulties that persons in same-sex relationships regularly face. “Whenever a person chooses a path which is not a path taken by the majority, they will be targeted or looked down upon; or not looked down but will not be accepted,” the judge observed. “I have many cases where the families give them up and do not accept the relation.”
The most telling remark came when the bench posed a direct question to the government: “The law recognises a between a man and a woman. Why will it not allow a between a man and a man?” This query cuts to the heart of the legal inconsistency—if the state accepts for heterosexual couples, it cannot, without justification, deny the same recognition to same-sex couples, especially in critical contexts like medical consent.
Legal Lacuna: Discrimination Embedded in Medical Regulations
The petition zeroes in on the language of the 2002 regulations, which list only “husband or wife, parent or guardian in the case of a minor, or the patient himself” as persons authorised to give consent. For same-sex partners, none of these categories apply. The plea argues that this “systemic exclusion/omission constitutes , violating , as is recognized as being covered under the meaning of ‘sex’ per the judgment in Navtej Johar.”
Legal experts note that the Navtej Johar decision in 2018 decriminalised consensual same-sex relations and held that discrimination based on is a form of sex discrimination. Since then, several courts have extended the logic to other areas, including succession rights and adoption. The medical consent issue is the latest frontier. If the state provides for a legal framework for heterosexual live-in partners to act as medical representatives—as many hospitals informally do—it cannot deny the same to same-sex partners without a reasonable classification.
The Way Forward: and Recognition
One of the alternative remedies sought is the acceptance of a . This would allow individuals to designate a person of their choice—including a same-sex partner—to make healthcare decisions on their behalf in advance. While the concept is well-established in many jurisdictions, India lacks a comprehensive law on for medical treatment. The petitioner argues that a simple declaration by the court that such a power of attorney is sufficient would provide immediate relief without requiring legislative change.
The matter has been listed for further hearing on . Until then, the Centre has been directed to file its response. The outcome could have far-reaching implications for the LGBTQ community, potentially forcing hospitals and the to update regulations to reflect the .
Conclusion
The ’s intervention comes at a time when is yet to deliver a final verdict on the broader issue of marriage equality for same-sex couples. But the medical consent case may be resolved sooner, as it does not demand the recognition of marriage—only the recognition of an existing relationship for a specific, limited purpose. The court’s observations suggest a strong inclination to fill the regulatory gap, and the government’s silence may ultimately work against its own position. For thousands of same-sex couples in India, the September hearing could mark a small but significant step toward dignity, autonomy, and equal access to healthcare.
