Queer partners can take emergency medical decisions if authorised by patient: Govt to Delhi High Court

The Centre has told the Delhi High Court that an adult can be permitted to nominate a partner, including the one in a non-heterosexual relationship, to take medical decisions in case of their incapacity while respecting the patient's autonomy and continuity of care.

The government made the submission in response to a petition seeking recognition of same-sex couples as medical representatives during medical treatment.

The Union Ministry of Health and Family Welfare and the National Medical Commission (NMC), in their counter affidavit, have submitted that such an approach is “substantially capable of being accommodated within the existing legal and ethical framework”, subject to applicable law and appropriate safeguards.

“Permitting a competent adult to nominate his/ her partner, including a partner in a non-heterosexual/ queer relationship, to take medical decisions on his/ her behalf in the event of incapacity would constitute a logical and tailored extension of the same principle, while respecting patient autonomy and ensuring continuity of care, subject to appropriate safeguards and the applicable law,” the Centre's affidavit said.

The petition is scheduled to come up for hearing on Thursday before Justice Swarana Kanta Sharma who had questioned the Centre on the last date of hearing for its failure to respond to the plea even after a year.

The affidavit said when 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 Centre said that it recognises and respects the constitutional guarantees of dignity, privacy, autonomy, equality and individual choice available to all persons, including members of the LGBTQIA+ community, and that its response is not intended to question the constitutional protection available to persons in queer relationships.

It said the reliefs sought by the petitioner for framing guidelines are substantially capable of being accommodated within the existing legal and ethical framework.

The government further relied upon a clause of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which contemplates obtaining consent from the patient himself or herself, or in specified circumstances from a spouse, parent or guardian.

It said the clause may be read harmoniously and purposively with the existing legal framework to not to exclude, merely on account of sex, gender, sexual orientation or absence of a formally recognised marital relationship, a partner duly nominated or authorised by a competent adult patient to take healthcare decisions on his or 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 reply said.

Such an interpretation, while preserving patient safety and due process, would advance the constitutional values of autonomy, dignity, equality and non- discrimination, it said.

The court had issued notice to the Centre and NMC in July 2025.

The court was hearing a petition filed by a woman, who was in a relationship with her partner since 2015 and both got married in New Zealand in 2023. They have been living together as same-sex partners in Delhi since 2018.

The petition highlighted the absence of a clear legal framework or common law recognition for “partners in a union” to be acknowledged for medical consent during medical treatment or emergencies.

The plea urged the court to frame guidelines directing hospitals or doctors to recognise non-heterosexual partners as medical representatives and grant them access during medical treatment.

The plea said the existing regulation was vague as it mandated consent for medical procedures and treatment from a “husband or wife, parent or guardian in the case of a minor, or the patient himself”.

It argued the lack of explicit recognition of partners in a union renders the petitioner effectively powerless to make critical medical decisions for her partner, or vice versa, a right readily available to heterosexual partners or couples under the prevailing regulations.

The petitioner pointed out the “critical need” for recognition of their union in medical contexts, submitting that her partner's immediate family members were living in different states or countries, making them potentially inaccessible during a medical emergency.

“Alternatively, the petitioner seeks a declaration that a medical power of attorney given in advance by a patient to their non-heterosexual partner shall be sufficient for such partner to act as the duly constituted medical representative. These prayers seek to address the current legal vacuum and ensure the fundamental right to care for one's partner in medical crises is afforded to all,” the petition said.

The lack of legal recognition leads to “a disparate impact” and violates the constitutional obligation to acknowledge their union under the Constitution and “this systemic exclusion/ omission” also constitutes discrimination on the ground of sex, violating fundamental rights, it added.