The National Medical Commission (NMC), along with the Union Ministry of Health and Family Welfare, has informed the Delhi High Court that nominated or authorised same-sex and unmarried partners can make medical decisions on behalf of an incapacitated partner. The clarification comes with the condition that such decisions remain subject to applicable law and appropriate safeguards.
Background of the Case
The statement was made in a joint affidavit filed in response to a petition by Arshiya Takkar, a queer individual. The petitioner sought guidelines recognising non-heterosexual partners as medical representatives who can give consent during treatment or emergencies.
Takkar has been in a long-term same-sex relationship and married her partner in New Zealand. The plea highlighted a gap in existing regulations that do not explicitly recognise partners in such unions for critical healthcare decisions — rights that are readily available to married heterosexual couples.
Key Points from the NMC Affidavit
The NMC stated that where a competent adult has nominated or authorised their partner to act 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.”
Important clarifications include:
A duly nominated or authorised partner (including same-sex or unmarried partners) should not be excluded from making healthcare decisions solely due to sexual orientation or lack of formal marriage.
Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 should be read “harmoniously and purposively” so that nominated partners are not left out.
Even without prior nomination, same-sex or unmarried partners may, in appropriate circumstances and subject to verification, safeguards and applicable law, be treated as persons in a “relationship of care” or as a “next friend.”
The arrangement can be accommodated within the existing legal and ethical framework while respecting patient autonomy and continuity of care.
The Centre and NMC also clarified that the term “spouse” under Indian matrimonial law continues to refer only to a husband or wife from a legally recognised marriage. They referred to the Supreme Court’s judgment in Supriyo @ Supriya Chakraborty v. Union of India, noting that same-sex relationships do not automatically confer the statutory status of spouse.