Plea before Delhi High Court to allow same-sex partner to give consent during medical emergencies

The Delhi High Court on Thursday issued notice to the Central government and the National Medical Commission (NMC) on a plea seeking directions to hospitals and doctors to recognise same-sex partners as each other’s medical representatives, allowing them to give consent in medical situations.

Justice Sachin Datta ordered the government to file its reply.

The plea was filed by a woman who got married to her partner in New Zealand in 2023.

The petitioner argued that there is a critical need for recognition of their union in the medical context, particularly because her partners' immediate family members reside in different States or countries, making them potentially inaccessible during a medical emergency.

It was contended that the existing regulations mandate consent of "husband or wife, parent or guardian in case of minors, or the patient himself" for medical procedures or treatment.

"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 said.

It added that prevailing legal and regulatory classification violates homosexual people's rights under Articles 14, 15, 19 and 21 of the Constitution of India.

"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," the plea said.

Therefore, the petitioner asked the Court to frame guidelines directing hospitals and physicians to recognise non- heterosexual partners as medical representatives and grant them access during medical treatment. 

In the alternative, it was submitted that a declaration should be issued by the Court that a medical power of attorney given in advance by a patient to their non-heterosexual partner would be sufficient for such partner to act as the duly constituted medical representative.

Senior Advocates Saurabh Kirpal and Shyel Trehan argued for the petitioner.

The plea was filed through advocates Manjira Dasgupta and Bhargav Ravindran Thali.