‘Don’t see why not…’: Delhi HC on plea seeking rights for same-sex couples to make medical decisions for each other

Senior advocate Saurabh Kirpal, appearing for Takkar, highlighted that the lack of guidelines in this regard leaves a “big lacuna in case of queer couples and public at large”.

Takkar underscored the “critical need for recognition of their union in medical contexts,” as Chopra’s immediate family members reside in different states or countries, making them potentially inaccessible during a medical emergency, and highlighted her “indispensable role as her partner’s decision-maker”.

Takkar’s petition submits that the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 mandate consent for medical procedures/treatment from a “husband or wife, parent or guardian in the case of minor, or the patient himself”, thus lacking “explicit recognition of partners in a union”, effectively making her “powerless to make critical medical decisions” for her partner.

Takkar has cited that this is arbitrary, a breach of her fundamental right of expression, and discrimination on the grounds of sex.

“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,” Takkar has submitted.

Takkar has sought the court’s direction to frame guidelines directing hospitals/physicians to recognise non-heterosexual partners as medical representatives and grant them access during medical treatment. She is also seeking a declaration that a medical power of attorney given in advance by a patient to their non-heterosexual partner shall be sufficient for such partner to act as the duly constituted medical representative.

Taken up before Justice Sachin Datta, the court orally remarked that it can consider the latter request, on declaring that a medical power of attorney given in advance to their partner shall suffice for consideration as being their medical representative. Kirpal further added that in the interim, the Centre too can consider framing guidelines.

Meanwhile, the central government’s standing counsel, Monika Arora, opposed the plea, orally submitting that while the Supreme Court has laid down “that there should not be discrimination in goods and services available to the public”, such a provision is not available for unmarried heterosexual couples, say for example a man and a woman in a live-in relationship, and thus the question of discrimination does not arise.

“Here, if someone is in a live-in relationship, a boy and girl, this (provision to authorise their partner as their medical representative) is not available,” Arora submitted.

Responding to the Centre’s assertion, Kirpal responded, “I am sure the Union (government) won’t be so inhuman…I am surprised. An unmarried man and woman are allowed to get married (but queer couples are not in India).”

Justice Datta also orally inquired from the Centre, “Let us take the case of a heterosexual situation, I don’t see why this regime shouldn’t be there. Suppose there is someone living all by himself or herself, what then?…or they are estranged from their family?”

Issuing notice, the court sought the responses of the government ministries and NMC, and has now kept the matter for consideration next on October 27.