Same-sex partners and unmarried couples can make medical decisions on their partner’s behalf during emergencies, provided they have been nominated or authorised to do so in the event of incapacity, the National Medical Commission (NMC) said in an affidavit in the Delhi high court on Wednesday.
The affidavit was filed in response to a petition seeking directions to the government to frame guidelines allowing same-sex partners to give consent in medical situations and emergencies. Arshiya Takkar, the petitioner, moved the court against regulation 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The regulation mandates consent for medical procedures and treatment from a husband or wife, parent, or guardian in the case of a minor or the patient.
On August 20, the court questioned the government over the exclusion of same-sex partners and unmarried couples from making medical decisions for each other during emergencies. It observed that the recognition of live-in relationships should be accompanied by corresponding rights. The court added that whenever a person chooses a path different from that taken by the majority, they are often targeted, looked down upon, or not accepted by society.
The NMC said that even in the absence of prior nomination, same-sex partners and unmarried couples may, in appropriate circumstances and subject to applicable law, verification and safeguards, be considered as persons in a relationship of care or as a “next friend” to make medical decisions on behalf of an incapacitated partner.
“Accordingly, 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, subject always to applicable law and appropriate safeguards,” the affidavit said.
It said clause 7.16 may accordingly be read harmoniously and purposively with the legal framework so as not to exclude, merely on account of sex, gender, sexual orientation or absence of a formally recognised marital relationship, a partner duly nominated/ authorised by a competent adult patient to take healthcare decisions on his/her behalf upon subsequent incapacity. “In the absence of such prior nomination, the partner may also be considered, in appropriate circumstances and subject to applicable law, verification and safeguards, as a person in a relationship of care/next friend for purposes of medical decision-making.”
The NMC, which regulates medical education, professionals, institutes, and research, referred to the October 2023 Supreme Court judgment declining to grant legal recognition to same-sex marriages or civil unions even as it held that the state is obligated to recognise such relationships and extend a range of benefits to them.
The NMC cited the judgment and said an August 2024 advisory allowed partners in a queer relationship to be treated as members of the same household for purposes of ration cards. It pointed out that the Union finance ministry has clarified that there is no restriction on members of the queer community opening joint bank accounts or nominating a person in a queer relationship as a nominee.
The affidavit referred to Union health ministry’s measures to reduce discrimination and strengthen healthcare services for the queer community. The NMC noted that these measures specifically contemplate that friends or close acquaintances may be permitted to take decisions relating to their care where a relative, next of kin or family member is unavailable in the case of terminally ill patients
A bench of Justice Swarana Kanta Sharma will consider the affidavit on September 17.
