The Delhi High Court is examining the exclusion of same-sex couples from the right to provide medical consent for their partners, raising fundamental questions about equality and individual autonomy in healthcare decisions. On Thursday, July 17, 2025, the court issued notices to the Central government and the National Medical Commission (NMC), seeking justification for this exclusion.
The case originated from a petition filed by Arshiya Takkar, who married her same-sex partner in New Zealand in 2023 and currently resides with her partner in Delhi. Takkar's petition highlights the practical difficulties and legal voids that same-sex couples face in medical emergencies due to the lack of legal recognition for their relationships. She argues that the existing legal framework, particularly Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, is discriminatory. This clause mandates that consent for medical procedures or treatment be obtained from a "husband or wife, parent or guardian in the case of a minor, or the patient himself". The petition argues that this effectively disempowers same-sex partners, denying them the right to make critical medical decisions for each other, a right readily available to heterosexual couples.
The petition emphasizes that the absence of a clear legal framework recognizing "partners in a union" creates significant hurdles for same-sex couples during medical emergencies. The lack of explicit recognition renders the petitioner powerless to make critical medical decisions for her partner, or vice versa. The petition further argues that many LGBTQIA+ individuals face strained relationships with their families and may prefer a non-family member, such as their partner, to make crucial medical decisions on their behalf.
During the hearing, Justice Sachin Datta questioned the rationale behind excluding unmarried and same-sex couples from granting medical consent on behalf of their partners. He raised concerns about individuals living alone or unmarried heterosexual partners, asking why the same rights shouldn't be extended to them. The Court has sought responses from the Union Ministries of Health and Family Welfare; Law and Justice; and Social Justice and Empowerment, and the NMC in the matter and posted the plea for further hearing on October 27.
The Centre's counsel, Monika Arora, argued that Indian law does not recognize same-sex marriage, and the existing regulations apply equally to all unmarried couples, regardless of their sexual orientation. However, the court questioned this justification, pointing out the potential for discrimination and the need to protect individual autonomy in medical decision-making. The petitioner argues that the current regulations violate fundamental rights under Articles 14 (equality before the law) and 21 (protection of life and personal liberty) of the Constitution. They also argue that it violates the Fundamental Right to Freedom of Expression under Article 19(1)(a) and (c) of the Constitution, as the lack of legal recognition curtails the petitioner's ability to express her relationship through cohabitation, mutual care, and healthcare decision-making.
The petition requests the Delhi High Court to direct hospitals and physicians to recognize non-heterosexual partners as medical representatives and grant them access during medical treatment. Alternatively, the plea seeks a declaration that a medical power of attorney executed in advance by a patient in favor of their non-heterosexual partner should be deemed legally sufficient for designating the partner as their medical representative.
