New Delhi [India], September 16 (ANI): The Union Ministry of Health and Family Welfare and the National Medical Commission (NMC) have told the Delhi High Court that there is no medical or ethical rationale for excluding a non-heterosexual or queer partner from taking healthcare decisions on behalf of a competent adult patient merely on the ground of the partners’ sex, gender or sexual orientation, subject to applicable law and safeguards.
In an affidavit filed before the High Court in a plea seeking recognition of non-heterosexual partners as medical representatives, the Union of India and NMC said that the relief sought by petitioner Arshiya Takkar is “substantially capable of being accommodated” within the existing legal and ethical framework.
The respondents, however, clarified that the expression “spouse” under the existing Indian matrimonial framework refers to a husband or wife arising from a legally recognised marriage.
They relied on the Supreme Court’s Constitution Bench judgment in Supriyo @ Supriya Chakraborty v. Union of India, stating that persons in a same-sex relationship do not acquire the statutory status of “spouse” merely by virtue of being in such a relationship.
The affidavit was filed pursuant to the Delhi High Court’s August 20, 2026 order directing the respondents to place their position on record. The petition seeks guidelines requiring hospitals, physicians and registered medical practitioners to recognise a non-heterosexual partner as the medical representative of a patient and permit such partner to give consent and access the patient during medical treatment.
Alternatively, the petitioner has sought a declaration that an advance medical power of attorney executed in favour of a non-heterosexual partner should be sufficient to authorise the partner to act as the patient’s medical representative during treatment or medical emergencies.
The Centre and NMC said medical decision-making cannot be determined solely by the personal relationship between a patient and the person seeking to act on the patient’s behalf. The nature of treatment, the patient’s capacity, urgency of the medical situation, the patient’s wishes and the applicable legal framework would have to be considered.
Referring to Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, the respondents said the provision primarily contemplates consent from the patient where the patient is capable of giving informed consent. They further stated that for a conscious and competent adult, the patient’s own informed and voluntary consent would ordinarily be sufficient.
The affidavit relies on the Supreme Court’s 2008 judgment in Samira Kohli v. Dr. Prabha Manchanda, which recognised the requirement of real and valid consent from a competent patient and affirmed the principle of patient autonomy.
The respondents said merely insisting on the consent or signature of a relative, in the absence of a statutory or legal requirement, cannot ordinarily override a competent adult patient’s right to bodily autonomy.
The respondents also referred to the Supreme Court’s Common Cause judgment on advance medical directives and said that a person can nominate a representative to take healthcare decisions when the person subsequently becomes unable to make an informed decision. The affidavit notes that the concept of a “trusted person” is not necessarily confined to a blood relative.
The affidavit further cites the Mental Healthcare Act, 2017, under which a person can nominate a representative through an advance directive, and notes that the Delhi High Court in Satula Devi v. GNCTD had held that a nominated representative can be any person chosen through an advance directive.
Importantly, the Centre and NMC stated that where a competent adult has nominated or otherwise authorised their partner to act on their behalf in the event of incapacity, there “appears to be no medical or ethical rationale” for excluding that partner merely because of the sex, gender or sexual orientation of the partners, or because their relationship does not fall within the conventional understanding of marriage. The affidavit said this would remain subject to applicable law and appropriate safeguards.
The respondents also pointed to steps already taken by various government departments concerning queer persons. These include a 2024 advisory by the Department of Food and Public Distribution permitting partners in queer relationships to be treated as members of the same household for ration-card purposes, and a clarification by the Department of Financial Services that there is no restriction on persons from the queer community opening joint bank accounts or nominating a person in a queer relationship as nominee.
The affidavit states that these measures reflect an administrative recognition that relationships of care, dependence and mutual responsibility are not necessarily confined to formally recognised marital or blood relationships. It therefore proposes that a competent adult should be able to nominate their partner, including a queer partner, to make medical decisions in the event of incapacity, subject to safeguards and applicable law.
The respondents ultimately said that Clause 7.16 of the 2002 Regulations may be read harmoniously with the broader legal framework so that a partner duly nominated or authorised by a competent adult is not excluded from taking healthcare decisions merely because of sex, gender, sexual orientation or absence of a formally recognised marriage. In the absence of prior nomination, the partner may also, in appropriate circumstances and subject to verification and safeguards, be considered as a person in a relationship of care or a “next friend” for medical decision-making. (ANI)