Delhi High Court Issues Notice On Plea To Recognize Patient's Same-Sex Partner As Medical Representative

The Delhi High Court on Thursday issued notice on a plea seeking framing of guidelines to recognise non-heterosexual partner of a patient as their medical representative and to give consent in medical situations.

Justice Sachin Datta sought response of Union Ministries of Health and Family Welfare, Law and Justice and Justice and Empowerment as well as National Medical Commission.

The plea has been filed by one Arshiya Takkar. In the alternative, she has sought a declaration that a medical power of attorney given in advance by a patient to their non-heterosexual partner must be sufficient to permit such partner to act as the duly constituted medical representative at the time of medical treatments or medical emergencies.

As per the petition, Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 mandate consent for medical procedures or treatment from a "husband or wife, parent or guardian in the case of minor, or the patient himself".

The plea submits that the provision lacks of explicit recognition of partners in a union and renders the Petitioner effectively powerless to make critical medical decisions for her partner, a right which is readily available to heterosexual partners or couples.

It has been contended that the situation leads to a “disparate impact” and violates the constitutional obligation to acknowledge non-heterosexual unions under Part III of the Constitution of India.

“It is contended that the prevailing legal and regulatory classification, by failing to include or recognize same-sex partners for medical decision-making, lacks a reasonable nexus with any legitimate state objective and is manifestly arbitrary, thus violating Article 14 of the Constitution of India,” the plea said.

Calling it “systemic exclusion”, the plea contends that the situation constitutes discrimination on the ground of sex, violating Article 15 of the Constitution of India, as sexual orientation is recognized as being covered under the meaning of "sex" per the judgment in Navtej Johar v. Union of India.

The petitioner has submitted that discriminatory classification based on sexual orientation, by privileging heterosexual relationships, lacks any reasonable basis.

“More broadly, it violates the fundamental right to life and personal liberty under Article 21 of the Constitution of India, which includes the right to live with dignity and autonomy in personal relationships, such as caring for a chosen partner in crucial medical decisions,” the plea states.

Title: ARSHIYA TAKKAR v. UNION OF INDIA & ORS