Can non-heterosexual partners be recognised as each other's medical representatives? Delhi HC asks Centre, NMC

New Delhi: The Delhi High Court has sought to know a response from the Central Government and the National Medical Commission (NMC) on a plea that demands same-gender partners be recognized as each other's medical representatives, by granting them the same rights as heterosexual spouses in healthcare settings.

Agreeing to take up the plea, the HC bench on Thursday issued a formal notice to the Central Government and the Apex Medical Commission.

The plea was filed by a woman who married her partner in New Zealand in December 2023. Her petition highlighted a significant gap in India's medical regulations, which currently do not explicitly acknowledge same-sex partners as next-of-kin.

Also Read: Madras HC slams NMC for terming Gender Identity a 'Disorder' in CBME curriculum

Due to this, such couples have to face practical and emotional turmoil during medical emergencies. As per the latest media report by Law Trend, the petitioner argued that with her partner's immediate family living in different states or even abroad, they are often not available to provide consent for urgent medical procedures. As a result, the person closest to her partner is left legally powerless to act whereas such an act is automatically granted to a husband or wife.

The plea has challenged the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which specify that the consent for treatment must be obtained from a "husband or wife, parent or guardian," or the patient.

Referring to this, the plea argued that the narrow definition effectively excludes same-sex partners, creating a discriminatory barrier to essential healthcare rights.

The Counsel for the petitioner, Senior Advocate Saurabh Kirpal argued that the exclusion violates fundamental rights guaranteed under the Constitution, including the rights to equality (Article 14), non-discrimination (Article 15), freedom of expression (Article 19), and life and personal liberty (Article 21).

In this regard, the petitioner submitted, "The prevailing legal framework and practices, by effectively restricting medical decision-making rights to heterosexual couples or normative family members, are inconsistent with this evolving constitutional understanding and violate constitutional morality, which mandates respect for diversity and individual dignity. The absence of legal recognition for same-sex partners in medical decision-making also contravenes India’s international obligations."

Contending that denying these rights is inconsistent with "constitutional morality", which calls for respecting individual dignity and diversity, the petitioner asked the Court to consider two primary solutions.

The first is to direct the framing of clear guidelines for all hospitals and medical practitioners to officially recognize same-sex partners as authorized medical representatives. Alternatively, the plea suggested that the Court declare that a medical power of attorney, granted in advance by one partner to the other, should be legally binding. This would provide clarity regarding the official mechanism for same-sex couples to ensure their wishes are respected in a medical crisis.

Indian Express has reported that while taking up the matter, Justice Sachin Datta orally remarked that it could consider the latter request on declaring that a medical power of attorney given in advance to their partner shall suffice for consideration as being their medical representatives.

The petitioner's counsel added that in the interim, the Centre too can consider framing guidelines. On the other hand, the counsel for Central Government opposed the plea as she orally submitted that while the Supreme Court has laid down "that there should not be discrimination in goods and services available to the public", such a provision is not available for unmarried heterosexual couples (for instance a man and a woman in a live-in relationship). Therefore, the Centre's counsel argued that the question of discrimination does not arise.

"Here, if someone is in a live-in relationship, a boy and girl, this (provision to authorise their partner as their medical representative) is not available," submitted the Centre's standing counsel.

In response, the petitioner's counsel argued, "I am sure the Union (government) won’t be so inhuman…I am surprised. An unmarried man and woman are allowed to get married (but queer couples are not in India)."

Taking note of this, Justice Datta orally asked the Centre, "Let us take the case of a heterosexual situation, I don’t see why this regime shouldn’t be there. Suppose there is someone living all by himself or herself, what then?…or they are estranged from their family?"

Issuing notice in the matter, the Court has listed the matter for further hearing on October 27.

Also Read: Include LGBTQIA+ Persons as Speakers in CME Programmes: Madras HC Directs DME