New Delhi, July 17 The Delhi High Court on Thursday issued notices to the Centre and the National Medical Commission (NMC) on a petition seeking recognition of same-sex partners as legitimate decision-makers during medical treatment.
A single-judge Bench of Justice Sachin Datta sought responses of the Union Ministries of Health and Family Welfare; Law and Justice; and Social Justice and Empowerment, and the NMC in the matter and posted the plea for further hearing on October 27.
The writ petition highlighted the absence of a clear legal framework or common law recognition for "partners in a union" to be acknowledged for medical consent during medical treatment or emergencies.
The petitioners, a same-sex couple living together in Delhi since 2018, underscored the critical need for recognition of their union in medical contexts since their immediate family members reside in different states or countries, making them potentially inaccessible during a medical emergency.
The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 mandate consent for medical procedures or treatment from a "husband or wife, parent or guardian in the case of minor, or the patient himself".
“This lack of explicit recognition of partners in a union renders the petitioner effectively powerless to make critical medical decisions for her partner, or vice-a-versa, a right readily available to heterosexual partners/couples under the prevailing 2002 Regulations,” contended the petition.
Claiming violation of Article 14 of the Constitution, it said that the prevailing legal and regulatory classification, by failing to include or recognise same-sex partners for medical decision-making, lacks a reasonable nexus with any legitimate state objective and is manifestly arbitrary.
Further, the plea claimed a violation of the Fundamental Right to Freedom of Expression under Article 19(1)(a) and (c) of the Constitution, as the lack of legal recognition curtails the petitioner’s ability to express her relationship through cohabitation, mutual care, and healthcare decision-making.
“More broadly, it violates the Fundamental Right to Life and Personal Liberty under Article 21 of the Constitution of India, which includes the right to live with dignity and autonomy in personal relationships, such as caring for a chosen partner in crucial medical decisions,” added the petition.
It said that the prevailing legal framework and practices, by effectively restricting medical decision-making rights to heterosexual couples or normative family members, are inconsistent with the evolving constitutional understanding and violate constitutional morality, which mandates respect for diversity and individual dignity.
The petitioner prayed the Delhi High Court to frame guidelines directing hospitals/physicians to recognise non-heterosexual partners as medical representatives and grant them access during medical treatment.
In the alternative, the plea sought a declaration that a medical power of attorney given in advance by a patient to their non-heterosexual partner should be sufficient for such partner to act as the duly constituted medical representative.
During the hearing, senior advocate Saurabh Kirpal said that the prayers sought to address the current legal vacuum and ensure that the fundamental right to care for one's partner in medical crises is afforded to all.
In January this year, the Supreme Court rejected the batch of pleas seeking review of its October 2023 verdict, which had refused to grant any legal recognition to same-sex and queer couples in the country.
In its verdict delivered on October 17, 2023, a 5-judge Constitution Bench had unanimously agreed that there exists no unqualified right to marriage and accepted the Centre’s proposal that a committee headed by the Cabinet Secretary be set up to examine what administrative steps could be taken to address basic social benefit concerns relating to same-sex couples.
The apex court had asked the Union and state governments to ensure that the LGBTQ+ community is not discriminated against on the basis of their sexual orientation and queer individuals are not refused access to any goods or services.
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