Queer Partners Can Take Medical Decisions In Emergencies If Authorised By Patient: Centre Tells Delhi High Court

The Central Government has told the Delhi High Court that a competent adult should be permitted to nominate their partner, including a partner in a non-heterosexual or queer relationship, to take healthcare decisions on their behalf if they subsequently become incapacitated.

The Union Ministry of Health & Family Welfare and the National Medical Commission (NMC) have submitted that such an approach is “substantially capable of being accommodated within the existing legal and ethical framework”, subject to applicable law and appropriate safeguards.

The submission was made in an affidavit filed by the National Medical Commission in a petition moved by Arshiya Takkar, seeking framing of guidelines to recognise non-heterosexual partner of a patient as their medical representative and to give consent in medical situations.

In the alternative, the plea seeks a declaration that a medical power of attorney given in advance by a patient to their non-heterosexual partner must be sufficient to permit such partner to act as the duly constituted medical representative at the time of medical treatments or medical emergencies.

The Centre stated that it recognises and respects the constitutional guarantees of dignity, privacy, autonomy, equality and individual choice available to all persons, including members of the LGBTQIA+ community, and that its response is not intended to question the constitutional protection available to persons in queer relationships.

In its response, the Centre has said that where a competent adult has nominated or otherwise authorised his or her partner to act on his or her behalf in the event of incapacity, there is 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.”

“These measures demonstrate a consistent administrative recognition that relationships of care, dependence and mutual responsibility are not necessarily confined to formally recognised marital or blood relationships. In this backdrop, 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 response states.

It adds that the reliefs sought in the petitions are substantially capable of being accommodated within the existing legal and ethical framework.

The Centre further relied upon Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which contemplates obtaining consent from the patient himself or herself, or in specified circumstances from a spouse, parent or guardian.

It said that the said clause may be read harmoniously and purposively with the existing legal framework so as not to exclude, merely on account of sex, gender, sexual orientation or absence of a formally recognised marital relationship, a partner duly nominated or authorised by a competent adult patient to take healthcare decisions on his or her behalf upon subsequent incapacity.

“In the absence of such prior nomination, the partner may also be considered, in appropriate circumstances and subject to applicable law, verification and safeguards, as a person in a relationship of care/ next friend for purposes of medical decision-making,” the response states.

It adds that such an interpretation, while preserving patient safety and due process, would advance the constitutional values of autonomy, dignity, equality and non- discrimination.

The Centre accordingly urged that the petitioner's prayers be examined in light of the existing statutory provisions, judicial pronouncements and government policy measures, with medical decision-making ultimately depending on the nature of treatment, circumstances, patient's wishes and the applicable legal framework.

Last month, Justice Swarana Kanta Sharma questioned the Centre by saying that if same sex partners have the right to relationship and live together, why should they be denied the choice to give medical consent for each other.

As per the petition, Clause 7.16 of 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".

The plea submits that the provision lacks of explicit recognition of partners in a union and renders the Petitioner effectively powerless to make critical medical decisions for her partner, a right which is readily available to heterosexual partners or couples.

It has been contended that the situation leads to a “disparate impact” and violates the constitutional obligation to acknowledge non-heterosexual unions under Part III of the Constitution of India.

Calling it “systemic exclusion”, the plea contends that the situation constitutes discrimination on the ground of sex, violating Article 15 of the Constitution of India, as sexual orientation is recognized as being covered under the meaning of "sex" per the judgment in Navtej Johar v. Union of India.

The petitioner has submitted that discriminatory classification based on sexual orientation, by privileging heterosexual relationships, lacks any reasonable basis.

“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,” the plea states.

Title: ARSHIYA TAKKAR v. UNION OF INDIA & ORS