The Delhi High Court on Thursday asked the Central Government and the National Medical Commission (NMC) to explain why same-sex couples are not allowed to make medical decisions for each other as “medical proxies.”
Justice Sachin Datta issued a notice to the Centre and NMC and sought their response by October. “Why can this benefit not be extended to non-heterosexual couples? What is the procedure for people who live alone and only have friends nearby?” the judge asked.
The court was hearing a plea filed by Arshiya, a Delhi-based businesswoman. She married her partner, also a woman, in New Zealand in 2023. Both are Indian citizens living in Delhi. Her partner works as a lawyer.
The petition challenges the National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations, 2023, which allow only family members such as a spouse or parent to make medical decisions if a person is hospitalised and unable to decide for themselves.
The petition highlights that while the Supreme Court’s 2023 Supriyo judgment called for policy changes to recognise queer couples, the government has failed to act, especially in allowing same-sex partners to act as medical proxies during emergencies.
Senior advocate Saurav Kirpal, appearing for the petitioner, said many LGBTQ+ persons are estranged from their families and may not have relatives nearby to make such decisions.
The petition, filed by advocates Manjira Dasgupta and Bhargav Ravindran, seeks court directions to allow hospitals and doctors to recognise non-heterosexual partners as medical representatives.
Alternatively, it asks for a declaration that a medical power of attorney given in advance to a non-heterosexual partner should be valid.
Currently, Clause 7.16 of the Indian Medical Council Regulations, 2002 allows consent only from a “husband or wife, parent or guardian in the case of a minor, or the patient himself.”
In this case, Arshiya’s partner’s family does not live in Delhi. The couple argues that, under the existing rules, they would be unable to make critical decisions for each other in a medical emergency.
The plea adds that limiting medical consent to only traditional family members ignores the reality that many LGBTQIA+ individuals are estranged from their families and may trust close friends or partners more to make such decisions.
The matter will be heard next on October 27.
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