Same-sex partners and unmarried couples can make medical decisions on behalf of their partners during emergencies if they have been nominated or authorised to do so in the event of incapacity, the National Medical Commission (NMC) clarified in a joint affidavit filed with the Centre before the Delhi High Court on Wednesday.
The affidavit was filed in a petition by Arshiya Takkar, a queer individual, seeking directions to the Centre to frame guidelines allowing same-sex partners to give consent in medical situations and emergencies. The court observed that recognition of live-in relationships should be accompanied by corresponding rights. Justice Sharma also observed that people who choose paths different from those taken by the majority are often targeted, looked down upon or not accepted by society. It also pointed to a clarification by the Department of Financial Services under the Union ministry of finance that there was no restriction on members of the queer community opening joint bank accounts or nominating a person in a queer relationship as a nominee.
The petition was filed against the backdrop of Clause 7.16, which mandates consent for medical procedures or treatment from a husband or wife, a parent or guardian in the case of a minor, or the patient himself. On August 20, the high court questioned the Centre over the exclusion of same-sex partners and unmarried couples from making medical decisions for their partners during emergencies. In its affidavit, NMC referred to the Supreme Court’s October 17, 2023 judgment, in which the court, while declining to grant legal recognition to same-sex marriages or civil unions, held that the State is obligated to recognise such relationships and extend a range of benefits to them. NMC said that following the judgment, the Department of Food and Public Distribution issued an advisory in August 2024 allowing partners in a queer relationship to be treated as members of the same household for the purposes of ration cards.
NMC, in its affidavit, also said that even without prior nomination, same-sex partners and unmarried couples may, in appropriate circumstances and subject to applicable law, verification and safeguards, be considered persons in a relationship of care or as a “next friend” for making medical decisions on behalf of an incapacitated partner. “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,” NMC said, while stressing that this would remain subject to applicable law and safeguards. It said Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 should be read “harmoniously and purposively” with the existing legal framework so that a partner duly nominated or authorised by a competent adult patient is not excluded from making healthcare decisions merely because of the partners’ sex, gender, sexual orientation or the absence of a formally recognised marriage. “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 affidavit said.
The affidavit will be considered by a bench of Justice Swarana Kanta Sharma on September 17. The affidavit further referred to measures issued by the Union ministry of health and family welfare to reduce discrimination and strengthen healthcare services for the queer community. NMC noted that these measures contemplate that, in the case of terminally ill patients, friends or close acquaintances may be permitted to take decisions relating to their care when a relative, next of kin or family member is unavailable.
