New Delhi, Sep 16 — The Centre and the National Medical Commission (NMC) have told the Delhi High Court that a non-heterosexual partner can be permitted to act as a medical representative of a patient in case of incapacity, saying there is no medical or ethical rationale to exclude such a person merely because of their sex, gender, or sexual orientation.
In a short affidavit filed before the High Court, the Union Ministry of Health and Family Welfare and the NMC said the existing legal and ethical framework substantially accommodates the plea seeking recognition of non-heterosexual partners as medical representatives and recognition of advance medical powers of attorney executed in their favour.
"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," it said.
The affidavit was filed in a petition seeking guidelines permitting hospitals, physicians, and registered medical practitioners to recognise non-heterosexual partners of patients as their medical representatives, allow them to give consent in medical situations, and provide them access to their partners during medical treatment.
The petition also seeks, in the alternative, a declaration that a medical power of attorney executed in advance by a patient in favour of a non-heterosexual partner would be sufficient to enable the partner to act as the patient's medical representative during medical treatment or emergencies.
However, the Centre and the NMC clarified that the expression "spouse" under the existing Indian matrimonial framework refers to the status of husband or wife arising from a legally recognised marriage.
"The Answering Respondent recognises and respects the constitutional guarantees of dignity, privacy, autonomy, equality and individual choice available to all persons, including persons belonging to the LGBTQIA+ community," the affidavit said.
It added that nothing contained in the affidavit was intended to question the constitutional protection available to persons in queer relationships.
The affidavit referred to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, saying the existing statutory framework contains gender-specific references and that the meaning and legal consequences attached to the expression "spouse" cannot be altered through the present proceedings.
They also relied on the Supreme Court's Constitution Bench judgment in Supriyo @ Supriya Chakraborty v. Union of India, concerning legal recognition of marriage between persons of the same sex.
According to the affidavit, the apex court had held that persons in a same-sex relationship do not acquire the statutory status of "spouse" under the existing statutory framework merely by virtue of being in such a relationship.
On medical decision-making, the affidavit stated the issue cannot be determined solely on the basis of the personal relationship between the patient and the person seeking to act on their behalf.
"The nature of the treatment, the capacity of the patient, the urgency of the medical situation, the patient's own wishes and the applicable legal framework governing representation are relevant considerations in determining the person competent to act on behalf of the patient," the reply document stated.
The affidavit referred to Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which provides for obtaining written consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself or herself, as the case may be. It added that the provision primarily contemplates consent from the patient where the patient is capable of giving informed consent.
"Accordingly, in the case of a conscious and competent adult patient, the patient's own informed and voluntary consent would ordinarily be sufficient," the affidavit said.
It added that the absence of a spouse, relative, blood relation, or guardian does not by itself invalidate the consent of a competent adult, while a personal relationship with the patient does not automatically confer authority to provide consent on the patient's behalf.
The Centre and the NMC relied upon the Supreme Court's judgment in Samira Kohli v. Dr Prabha Manchanda to stress the requirement of real and valid consent and the principle of patient autonomy.
"The patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to," the affidavit quoted from the judgment.
It further submitted that where a patient is temporarily unconscious, and there is no medical emergency, the preferred course would be to wait until the patient regains capacity and obtain their consent.
However, where an adult patient is in a medical emergency, unconscious or otherwise incapable of communicating consent and immediate treatment is necessary, treatment may be undertaken in good faith for the patient's benefit, particularly where delay may endanger life or cause serious harm.
The affidavit referred to Section 30 of the Bharatiya Nyaya Sanhita, 2023, in this regard, submitting that the absence of a relative or attendant should not by itself prevent urgently necessary or life-saving treatment.
The affidavit also referred to the Supreme Court's judgment in Common Cause v. Union of India, which recognised the right to die with dignity and the concept of Advance Medical Directives or "living wills".
It said the Constitution Bench judgment recognised a medical power of attorney through which a person could nominate a representative to make decisions regarding medical treatment when the person subsequently becomes unable to make an informed decision.
"Importantly, the conceptual formulation is 'trusted person', not necessarily a blood relative," the affidavit said.
It also referred to the Mental Healthcare Act, 2017, which provides for an "Advance Directive" and "Nominated Representative", and cited a 2021 Delhi High Court judgment, observing that a nominated representative "can be any person who may have been chosen by an advance directive".
The affidavit further referred to the Life Saving Anaesthesia Skills -- Revised Curriculum, 2024, issued under the aegis of the Health Ministry, saying it recognises that valid consent is founded upon the patient's capacity and competence, voluntariness and adequate disclosure of information.
The Centre and the NMC said that various measures adopted by government departments following the Supreme Court's judgment in Supriyo @ Supriya Chakraborty v. Union of India also reflected recognition of relationships of care and mutual responsibility beyond formal marital or blood relationships. It referred to an August 2024 advisory of the Department of Food & Public Distribution enabling partners in a queer relationship to be treated as members of the same household for ration-card purposes, as well as a clarification by the Department of Financial Services that there was no restriction on queer persons opening joint bank accounts or nominating a person in a queer relationship as nominee.
The affidavit also referred to measures of the Union Health Ministry concerning discrimination and healthcare services for the LGBTQIA+ community, including provisions relating to terminally ill patients where a close acquaintance may take decisions concerning care if a parent, relative, next of kin or family member is unavailable.
The affidavit ultimately submitted that the petitioner's reliefs were "substantially capable of being accommodated within the existing legal and ethical framework". It said Clause 7.16 of the 2002 Regulations could be read harmoniously with the principles of patient autonomy, advance medical directives and the existing legal framework so as not to exclude a partner duly nominated or authorised by a competent adult patient merely on the ground of sex, gender, sexual orientation or absence of a formally recognised marital relationship.
"Such an interpretation, while preserving patient safety and due process, would advance the constitutional values of autonomy, dignity, equality and non-discrimination," the affidavit said.
However, the affidavit maintained that medical decision-making in the case of an adult patient who is unable to make or communicate a decision would have to be considered with reference to the nature of treatment, circumstances in which the decision is required, the patient's wishes and the applicable legal framework governing representation.
The affidavit was filed by Abhijit Chakraborty, Director, National Medical Commission, as the authorised representative of the Union of India through the Ministry of Health and Family Welfare and the NMC, pursuant to an August 20, 2026, order of the Delhi High Court in a writ petition filed by Arshiya Takkar.