Delhi HC Questions How Centre's Affidavit On Same-Sex Partners' Medical Rights Reached Media Before Court

The Delhi High Court on September 17 questioned how the Centre's affidavit in a case concerning medical decision-making rights of same-sex partners reached the media before the document was placed before the Court.

Justice Swarna Kanta Sharma, hearing a petition seeking recognition of a non-heterosexual partner as a medical representative, expressed surprise that the contents of the Centre's response had appeared in news reports before the Court had received it.

“How is the counter known to the press before I came to know? I am very surprised” the Judge remarked. To this, ASG Chetan Sharma said that SG Tushar Mehta will appear before the Court and make submissions.

He also clarified that the centre had not given a copy of the affidavit to the press.

The observation came a day after the Union Ministry of Health and Family Welfare and the National Medical Commission (NMC) placed their position on the issue before the Court.

In their affidavit, the Centre and NMC have stated that a competent adult can nominate or otherwise authorise their partner, including a partner in a non-heterosexual or queer relationship, to make healthcare decisions on their behalf if they subsequently become incapacitated.

Importantly, the position has been made subject to applicable law, verification and appropriate safeguards.

Centre says Queer partner cannot be excluded merely due to Sexual orientations

The affidavit takes the position that allowing a competent adult to nominate a partner to take healthcare decisions in the event of incapacity can be accommodated in the existing legal framework.

The Centre and NMC have said there would be no medical or ethical basis to exclude a duly nominated partner merely because the relationship is non-heterosexual.

"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 affidavit, as reported by PTI, states.

It adds: "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 authorities have also suggested that the existing regulatory framework can be interpreted in a manner that does not automatically exclude such a nominated partner.

The affidavit further states that where there is no prior nomination, a partner may, in appropriate circumstances and subject to applicable law, verification and safeguards, be considered as a person in a relationship of care or a “next friend” for purposes of medical decision-making.

This is significant because the Centre's response is framed around patient autonomy and prior authorisation, rather than recognition of same-sex marriage.

What is the Petition all about?

The petition has been filed by Arshiya Takkar, who seeks directions for a framework recognising a non-heterosexual partner as a medical representative capable of taking decisions for a patient who is unable to do so.

An alternative prayer seeks recognition of a medical power of attorney executed in advance by a patient in favour of their non-heterosexual partner as sufficient authority for that partner to act as the patient's medical representative during treatment or a medical emergency.

The petition raises a challenge concerning Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which refers to consent being obtained from the patient, or in specified circumstances from a “husband or wife, parent or guardian in the case of minor”.

The petitioner has argued that the absence of an express mechanism recognising partners in non-heterosexual relationships can leave them without a clear route to participate in crucial healthcare decisions concerning their partner.

The plea invokes constitutional guarantees including equality, dignity, privacy and personal autonomy.

Court had earlier questioned exclusion of Same-Sex partners

The issue came into sharper focus during an earlier hearing in August, when Justice Sharma questioned why recognition accorded to certain live-in relationships was not accompanied by similar mechanisms for same-sex couples seeking to make decisions for one another in medical emergencies.

The Court had also questioned what safeguards could be put in place to protect persons in same-sex relationships who choose their partners to make healthcare decisions on their behalf.

The petitioner's case is that the ability to care for and take medical decisions concerning a partner should not depend solely upon whether the relationship falls within the conventional definition of marriage.

Centre Refers To Existing Measures For Queer Persons

The NMC has referred in its affidavit to developments following the Supreme Court's 2023 judgment concerning same-sex marriage.

The Supreme Court did not grant legal recognition to same-sex marriage or civil unions in that judgment, but its decision also addressed the need for the State to consider benefits and entitlements available to persons in queer relationships.

The NMC has cited subsequent government measures, including an advisory concerning treatment of partners in queer relationships as members of the same household for ration-card purposes. It has also referred to clarification from the Union Finance Ministry that members of the queer community are not prohibited from opening joint bank accounts or nominating a person in a queer relationship as a nominee.

The affidavit also refers to measures taken by the Union Health Ministry aimed at reducing discrimination and improving access to healthcare for queer persons.

According to the NMC, these measures contemplate circumstances where friends or close acquaintances may participate in decisions concerning the care of a terminally ill patient when relatives, next of kin or family members are unavailable.