Centre and NMC tell Delhi High Court a nominated queer partner can take medical decisions

The Union health ministry and the National Medical Commission told the Delhi High Court on 16 September that a competent adult may nominate a partner, including a partner in a non-heterosexual relationship, to take healthcare decisions if that adult later becomes incapacitated. They said the arrangement can sit inside the existing legal and ethical framework, subject to statute and safeguards.

The affidavits answer a petition by Arshiya Takkar, who asked the court to frame guidelines so that hospitals and registered medical practitioners recognise a non-heterosexual partner as a medical representative. In the alternative she asked for a declaration that a medical power of attorney given in advance is enough.

On 20 August Justice Swarana Kanta Sharma had asked the government why same-sex partners and unmarried couples were kept out of emergency medical decisions. She said recognition of live-in relationships should carry corresponding rights. The bench will take the new affidavits on 17 September.

The government's line is narrow and specific. Where a capable adult has already nominated or authorised a partner, "there appears to be no medical or ethical rationale for excluding such person merely on account of the sex, gender or sexual orientation of the partners or because their union does not fall within the conventional understanding of marriage." The sentence is the core of the filing. It does not create a new marital status.

The same affidavits repeat the Supreme Court's holding in Supriyo v. Union of India: persons in a same-sex relationship do not acquire the statutory status of spouse. "Spouse" in Indian matrimonial law still means a husband or wife from a legally recognised marriage. The Centre said that restatement does not take away constitutional protection for people in queer relationships. It only keeps the word spouse where the statute put it.

What changes in a hospital corridor

If the court accepts the affidavits as a working rule, a hospital that has a signed nomination on file should treat the named partner as the decision-maker when the patient cannot speak. That is the practical shift. It does not require a marriage certificate. It does require paperwork done in advance: a nomination, a power of attorney, or another written authorisation.

Where no nomination exists, the NMC said a partner may, in suitable cases and after verification, be treated as a person in a relationship of care or as a next friend. That second limb is weaker. It leaves the doctor and the hospital to decide what "suitable" means at the bedside, which is how queer and unmarried partners already lose arguments to blood relatives who arrive with identity cards and certainty.

Takkar's petition exists because that bedside fight is common. A partner who has shared a home and a bank account can still be asked to wait outside while a distant sibling signs a consent form. The August hearing put that practice on the record. The September affidavits try to answer it without rewriting marriage law.

The limit the government will not cross

Supriyo closed the door on a judicial route to marriage equality. The Centre is using that judgment as a fence. Nomination is allowed. Spousal status is not. Hospitals that want a simple checklist will not get one that says "partner equals spouse." They will get one that says "authorised partner equals decision-maker, if the paper is in the file."

That is still a change from silence. Medical ethics codes in India have not spoken clearly about queer next of kin. The NMC's sentence that there is no medical or ethical rationale for exclusion is the first time the regulator has put that view in a court affidavit.

What the court does on 17 September will decide whether this stays a government position in one petition or becomes guidance that every hospital has to follow. Until then, the safe course for couples who want the rule to work is the unromantic one: sign the nomination before anyone needs it.