In Delhi High Court, Government backs plea to let same-sex partner take medical call for the other

In a significant legal development, the Union Ministry of Health and Family Welfare has backed a plea in the Delhi High Court advocating for same-sex partners to be allowed to make medical decisions for their partners in emergencies. The ministry argued that there is no need to exclude those in non-heterosexual/ queer relationships from the legal framework that allows partners to act as medical representatives.

The plea was filed by a same-sex couple who married in New Zealand in December 2023. The couple contended that there is currently no legal recognition of the rights of non-heterosexual couples to serve as medical representatives for their partners during medical treatment or emergencies.

In its response, the ministry cited existing legal frameworks, including the Mental Healthcare Act, 2017, which recognises that a medical representative can be any person, not limited to blood relatives or spouses. It emphasized that where a competent adult has authorized their partner to act on their behalf in the event of incapacity, there is no medical or ethical justification for excluding such a person based on their sex, gender, or sexual orientation, or because their relationship does not fit traditional definitions of marriage.

However, the ministry maintained that the term "spouse" under Indian marriage laws only applies to heterosexual couples. It referenced the Supreme Court's 2023 decision against legalising same-sex marriages. The ministry pointed out that in recent years, other government departments have also recognized relationships of care and mutual responsibility beyond formal marriage or blood relations.

For instance, the Ministry of Finance clarified in 2024 that same-sex couples can open joint bank accounts, and the Department of Food and Public Distribution allows them to be treated as members of the same household for ration card purposes.

The ministry argued that permitting a competent adult to nominate their partner, including those in non-heterosexual/ queer relationships, to make medical decisions aligns with these principles while respecting patient autonomy.