Delhi High Court hears plea highlighting that same-sex partners are “effectively powerless” to make medical decisions for each other. Petitioner argues current rules only allow “husband or wife” to give medical consent, violating constitutional rights.
New Delhi: Today, on July 17, the Delhi High Court has recently taken a significant step by asking the Central government and the National Medical Commission (NMC) to respond to a petition that raises an important issue about the rights of same-sex couples in medical situations.
The case was heard by Justice Sachin Datta, who issued a notice to both the Central government and the NMC. He has directed them to file their responses regarding the matter.
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This petition has been filed by a woman who married her same-sex partner in New Zealand in 2023. She has asked the Court to issue clear guidelines that would allow hospitals and doctors to recognise same-sex partners as each other’s medical representatives.
This recognition is essential because it would let one partner take medical decisions on behalf of the other in emergency situations, something that is currently more easily available to heterosexual couples.
The petitioner highlighted a major issue. Her partner’s family lives far away—in other States or even outside India—which means they might not be available during a sudden medical emergency.
Because of this, there is a “critical need for recognition of their union in the medical context.”
Currently, the rules followed in Indian hospitals are based on regulations that were introduced in 2002.
According to these rules, consent for medical procedures must come from the “husband or wife, parent or guardian in case of minors, or the patient himself.”
This clearly leaves out same-sex partners from being able to make important medical decisions for each other.
As the petition explains,
“This lack of explicit recognition of partners in a union renders the Petitioner effectively powerless to make critical medical decisions for Ms. Chopra, or vice-a-versa, a right readily available to heterosexual partners/couples under the prevailing 2002 Regulations.”
The plea further argues that such outdated rules go against the fundamental rights given by the Indian Constitution under Articles 14 (equality before law), 15 (prohibition of discrimination), 19 (freedom of expression), and 21 (right to life and personal liberty).
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It says,
“The prevailing legal framework and practices, by effectively restricting medical decision-making rights to heterosexual couples or normative family members, are inconsistent with this evolving constitutional understanding and violate constitutional morality, which mandates respect for diversity and individual dignity. The absence of legal recognition for same-sex partners in medical decision-making also contravenes India’s international obligations.”
Therefore, the petitioner has asked the Court to come up with new rules or guidelines so that hospitals and doctors are directed to treat non-heterosexual partners equally and allow them access and rights in medical situations.
If such a guideline is not possible immediately, then at least a declaration should be made by the Court that if a patient gives a medical power of attorney in advance to their same-sex partner, that should be treated as legally valid and sufficient to allow the partner to act as their official medical representative.
The petitioner was represented by Senior Advocate Saurabh Kirpal, while the petition was filed through advocates Manjira Dasgupta and Bhargav Ravindran Thali.
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