The National Medical Commission (NMC) submitted before the Delhi High Court (HC) on Wednesday that same-sex partners as well as unmarried couples can undertake medical decisions on behalf of their partners during emergency cases, if they have been nominated or authorised to do the same in the event of incapacity.

The NMC made the submission via an affidavit filed before the HC on Wednesday as a response to the petition seeking guidelines to allow same-sex partners to provide consent for medical treatment and procedures in emergency situations.

NMC seeks wider reading of consent rules

The petition was filed by Arshiya Takkar, who challenged Regulation 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The provision requires consent for medical procedures and treatment from the patient, their spouse, or a parent or guardian in case of a minor.

The NMC said there was no medical or ethical reason to exclude a partner who had been nominated or authorised by a competent adult merely because of their gender, sex or sexual orientation, or because the relationship was not a formally recognised marriage.

The NMC said in its affidavit, “Accordingly, where a competent adult has nominated or otherwise authorised his/her partner to act on his/her behalf in the event of incapacity, there appears to be no medical or ethical rationale for excluding such person.” It went on to say that Regulation 7.16 could be interpreted in harmony with the existing legal framework so that a duly nominated or authorised partner would not be excluded from taking healthcare decisions solely because the relationship did not fall within the conventional definition of marriage.

Partners can be treated as ‘next friend’

The NMC further said that even where no prior nomination had been made, a same-sex or unmarried partner could, in appropriate circumstances and subject to applicable law, verification and safeguards, be considered a person in a relationship of care or as a ‘next friend’ for medical decision-making involving an incapacitated partner.

The submission comes days after the court, on August 20, questioned the Union Government over the exclusion of same-sex partners and unmarried couples from making medical decisions for one another during emergencies. The court noted that recognition of live-in relationships should be accompanied by corresponding rights. It also observed that people who choose a path different from that followed by the majority are often targeted, looked down upon or not accepted by society.

NMC cites SC’s judgment, government measures

The NMC also referred to the Supreme Court’s order dating back to 2023, in which it declined to grant legal recognition to same-sex marriages or civil unions. Concurrently, the court ruled that the state is obligated to recognise such relationships and extend a range of benefits to them.

Furthermore, the commission pointed to an August 2024 advisory order under which partners in queer relationships could be treated as members of the same household for ration-card purposes. It further noted that the Union Finance Ministry has clarified that members of the queer community face no restriction in opening joint bank accounts or nominating a person in a queer relationship as a nominee.

The affidavit also cited measures taken by the Union Health Ministry to reduce discrimination and ramp up healthcare services for the queer community. According to the NMC, these measures envisage allowing friends or acquaintances to take care-related decisions for terminally ill patients when the next of kin or family members are unavailable.

A bench of the Delhi HC, led by Justice Swarna Kanta Sharma, is scheduled to consider the NMC’s affidavit on September 17.