Same-sex partner can be made nominee for medical decisions, Centre tells HC

1. At a Glance

• Centre (Union Ministry of Health & Family Welfare) and National Medical Commission (NMC) told Delhi HC that a competent adult can nominate any partner — including one in a non-heterosexual/same-sex relationship — to take medical decisions if the person becomes incapacitated [1][2].
• Government's stance: this is "substantially capable of being accommodated within the existing legal and ethical framework," without amending law, subject to safeguards [1][2].
• Distinct from same-sex marriage recognition — Centre clarified "spouse" under Indian matrimonial law still means husband/wife from a legally recognised marriage; this is about medical proxy/consent, not marital status [1].
• Relevant for GS-II (rights of LGBTQ+ persons, health governance) and intersects with the 2023 Supriyo v. Union of India same-sex marriage judgment.

2. Why in the News

• Affidavit filed by Union Health Ministry & NMC before Delhi High Court in September 2026, in a plea by Arshiya Takkar, who has been with her partner since 2015, married her in New Zealand in 2023, and has lived with her in Delhi since 2018 [1][3].
• Takkar's plea highlighted absence of a legal mechanism for her to make critical medical decisions for her partner during an emergency, despite their long-term cohabitation [3].
• News report dated 17 September 2026 (The Hindu, Chennai edition, p.16) [3].

3. Background & Evolution

• 2017: Mental Healthcare Act enacted — introduced concept of "nominated representative" (Section 14) who can make mental-healthcare decisions for a person during incapacity; nomination is by written declaration, irrespective of relationship type [4][5].
• 2018: Takkar and her partner began living together in Delhi.
• 2023: Takkar married her partner in New Zealand (marriage not recognised under Indian law).
• 2023: Supreme Court in Supriyo v. Union of India declined to grant same-sex marriage legal recognition, leaving it to Parliament, but flagged ancillary rights (e.g., nomination in bank accounts, insurance, medical decisions) as areas needing administrative fixes.
• 2026: Takkar's writ petition in Delhi HC seeking recognition of her partner as her authorised medical decision-maker; Centre and NMC file affidavit taking an accommodative position [1][2][3].

4. Core Static Facts

5. Multi-Dimensional Analysis

Social

• Advances de facto recognition of same-sex partnerships in a narrow, functional domain (healthcare) without full marriage equality [1][2].
• Addresses real-world vulnerability of queer couples during medical emergencies (hospital consent, next-of-kin decisions).

Legal/Constitutional

• Executive/administrative accommodation route, distinguishable from judicial recognition of marriage — mirrors Supriyo judgment's suggestion that government address ancillary rights via administrative/policy measures rather than marriage law.
• Builds on existing statutory nomination mechanisms (Mental Healthcare Act 2017) rather than creating new legislation [4][5].
• Raises question of consistency: medical consent recognised for queer partners, but inheritance, adoption, insurance nomination for same-sex partners remain unresolved.

Ethical/Governance

• Reflects "safeguards" language — govt keeping discretion over how such nominations are verified/regulated (potential for bureaucratic hurdles).
• Balances patient autonomy (right to choose decision-maker) against existing matrimonial framework.

Administrative

• Implementation will need clarity from hospitals/NMC on standard consent/nomination forms recognising any nominated partner regardless of orientation.

6. Recent Developments (last 12-18 months)

• September 2026: Centre and NMC file affidavit in Delhi HC in Takkar's case, taking accommodative stance on same-sex partner medical nomination [1][2][3].
• Case continues before Delhi HC; final ruling/order not yet reported in available sources.

7. Prelims Hooks

• Case relates to Delhi High Court, petitioner Arshiya Takkar [3].
• Respondents: Union Ministry of Health and Family Welfare and National Medical Commission (NMC) [1][3].
• Government affidavit stated the practice was "substantially capable of being accommodated within the existing legal and ethical framework" [1][2].
• Concept of "nominated representative" for incapacity-based medical decisions is statutorily rooted in Section 14, Mental Healthcare Act, 2017 [4][5].
• Under Mental Healthcare Act 2017, nomination must be in writing, on plain paper, with signature/thumb impression [5].
• Advance directive under the 2017 Act is invoked only when the person loses capacity to make treatment decisions [5].
• Centre clarified "spouse" under Indian matrimonial law still means husband/wife arising from a legally recognised marriage — same-sex marriage not thereby recognised [1].
• Takkar married her partner in New Zealand in 2023; couple has lived together in Delhi since 2018 [3].
• The government's position does not amend law but interprets existing framework as already accommodating such nominations, subject to safeguards [1][2].
• This development follows the Supreme Court's 2023 Supriyo v. Union of India verdict, which declined same-sex marriage recognition but urged administrative measures on ancillary rights.
• National Medical Commission (NMC) is the statutory body (replacing Medical Council of India via NMC Act, 2019) regulating medical education/practice in India — relevant nodal body here [1].

8. Why a Nomination Form Is Not the Same as Being Next of Kin

• The right only exists if the paperwork was signed before the emergency
• Under the Mental Healthcare Act, 2017, a nominated representative is appointed by a written, signed declaration made while the person still has capacity [5].
• So the partner's power comes from a document, not from the relationship itself.

• A husband or wife is treated as next of kin automatically. A same-sex partner is treated as a stranger unless a form exists.

• Most couples will not have the form when they need it

• Accidents, strokes and comas do not wait for paperwork. Arshiya Takkar had lived with her partner in Delhi since 2018 and still had no mechanism to decide for her in an emergency [3].

• Even the Centre's accommodative stance does not change this: it says nomination is allowed, not that a long-term partner is presumed to be the decision-maker [1][2].

• "Subject to safeguards" puts the burden on the couple, not the hospital

• The Centre's words are that the practice is "substantially capable of being accommodated within the existing legal and ethical framework", subject to safeguards [1][2].
• Safeguards means proof — who verifies the form, at what hour of the night, in a casualty ward. None of that is spelt out yet.

9. The Act Being Used Was Written for Mental Healthcare, Not for Surgery

• The tool is borrowed by analogy, not by text
• Section 14 of the Mental Healthcare Act, 2017 creates the nominated representative for mental-healthcare decisions during incapacity [4][5].
• The Centre calls extending it to same-sex partners a "logical and tailored extension" of that principle [1][2].

• But a general surgery consent or a decision to withdraw life support is not a mental-healthcare decision. No statute says the 2017 Act's nominee governs it.

• If the existing framework already allowed this, the case would not exist

• The Centre's own position is that no law needs to be amended [1][2].
• Yet the petitioner had to file a writ petition in the Delhi High Court to get that said out loud [3].

• That gap is the real finding: a rule that only becomes visible when someone can afford a High Court lawyer is not working for people who cannot.

• A hospital that refuses today breaks no rule

• The National Medical Commission (NMC) regulates medical practice and ethics under the NMC Act, 2019 [1].
• An affidavit in one case is not an NMC regulation. There is no listed penalty for a hospital that turns a same-sex partner away at the consent desk.

10. Since Supriyo, Queer Rights Have Arrived by Circular, Not by Statute

• This affidavit is the fourth item in a pattern, not a one-off
• April 2024: a high-level committee chaired by the Cabinet Secretary was set up to work out entitlements for queer persons, with the Home, Women and Child Development, and Health Ministries on it [7].
• August 2024: the Department of Financial Services clarified that queer persons face no restriction in opening joint bank accounts or nominating a partner [6].
• The Department of Food and Public Distribution advised States to treat queer partners as members of the same household for ration cards [7].

• September 2026: the Health Ministry and NMC say the same about medical nomination [1][2][3].

• A clarification can be withdrawn; a statute cannot

• Each of these is a departmental advisory or affidavit. None creates a right the partner can sue on if denied.

• A State that ignores the ration-card advisory, or a hospital that ignores the affidavit, faces no consequence written into any law.

• The pieces do not add up to a status

• A joint bank account [6], a ration card [7] and a consent form [1] are separate permissions, each needing its own document.
• Inheritance, adoption and pension still follow "spouse", and the Centre has repeated that "spouse" means husband or wife from a legally recognised marriage [1].

11. The Honest Case for Fixing This by Affidavit Instead of by Law

• The strongest argument against the criticism above: this is the only road open
• In Supriyo v. Union of India (2023) the Supreme Court refused to read marriage rights in and left it to Parliament.
• In January 2025 the Court dismissed the review petitions against that verdict, saying there was no error [8].

• So the courtroom route to marriage is closed, and Parliament has not moved. Waiting for a statute means waiting with no date.

• Administrative fixes are fast and they do reach people

• The joint bank account clarification took a departmental letter, not a Bill [6].

• A person in an ICU today gains more from a consent form that works this year than from a law that may come in ten.

• What the criticism still gets right

• Speed is bought by giving up enforceability. The couple who is refused has no remedy short of a writ petition — exactly what Takkar had to file [3].
• It also keeps the decision with the executive, which can change its mind without any vote in Parliament.

12. What Would Turn This Affidavit Into Something a Nurse Can Follow

• NMC should write it into its professional conduct regulations
• The NMC is the statutory regulator of medical practice and ethics under the NMC Act, 2019 [1].

• A regulation binds every registered doctor and carries disciplinary consequence. An affidavit in one case binds nobody.

• The Health Ministry should issue one standard consent form naming the nominee

• Today each hospital designs its own admission and consent papers, and most have a printed "relationship to patient" box with only family options.
• A single national form with a "nominated representative" line, copied from the written-declaration method of the Mental Healthcare Act, 2017 [5], removes the argument at the counter.

• The Ministry has already used this route: it issued guidelines to stop discrimination against queer persons in healthcare [7].

• The Cabinet Secretary's committee should publish its decisions in one place

• The committee set up in April 2024 covers Home, Women and Child Development, and Health [7].
• Its outcomes have so far reached people as scattered departmental notes on ration cards and bank accounts [6][7].

• One published, dated list of entitlements would let a couple, a bank clerk and a hospital read the same page.

• Follow the bank model: allow nomination at the point of service

• Banks let a customer name a nominee when the account is opened [6].
• Hospitals and insurers should take the nomination at registration, not demand a notarised paper during an emergency.

13. Anchors for Answers

• Law/Case: Section 14, Mental Healthcare Act, 2017 — nominated representative appointed by written declaration for decisions during incapacity [4][5]
• Law/Case: Supriyo v. Union of India (2023) — refused same-sex marriage recognition; review petitions dismissed by the Supreme Court in January 2025 [8]
• Report/Committee: High-level committee chaired by the Cabinet Secretary on entitlements of queer persons, constituted April 2024 (Home, Women and Child Development, Health Ministries) [7]
• Scheme/Administrative action: Department of Financial Services clarification (2024) — no restriction on queer persons opening joint bank accounts or nominating a partner [6]; Department of Food and Public Distribution advisory to States to treat queer partners as one household for ration cards [7]
• Law/Case: National Medical Commission Act, 2019 — NMC as the regulator that could convert this stance into binding conduct regulations [1]

14. Mains Relevance

• GS-II: Government policies and interventions; Rights of vulnerable/marginalised sections (LGBTQ+); Judiciary and executive interface; Health-sector governance.
• Syllabus heading: "Welfare schemes for vulnerable sections," "Mechanisms, laws, institutions for protection of vulnerable sections," "Government policies and interventions."
• Plausible Mains questions: 1. Discuss how administrative/executive accommodation, rather than legislative or judicial recognition, is emerging as a pathway to secure ancillary rights for same-sex couples in India. Illustrate with recent examples. 2. Examine the significance and limitations of the 'nominated representative' framework under the Mental Healthcare Act, 2017 in addressing healthcare decision-making rights of unmarried and same-sex partners. 3. Critically analyse the Supreme Court's verdict in Supriyo v. Union of India (2023) and its aftermath in shaping incremental rights recognition for same-sex couples in India.

15. Related Topics to Study Next

• Supriyo v. Union of India (2023) — SC verdict on same-sex marriage; directly precedes this administrative response.
• Mental Healthcare Act, 2017 — statutory basis for "nominated representative" and advance directives.
• Transgender Persons (Protection of Rights) Act, 2019 — related LGBTQ+ rights legislation.
• Right to Privacy (Puttaswamy judgment, 2017) — constitutional basis for autonomy/orientation rights (Article 21).
• Navtej Singh Johar v. Union of India (2018) — decriminalisation of Section 377 IPC, foundational LGBTQ+ rights case.
• Medical consent & Power of Attorney law in India — legal mechanisms for healthcare proxies.
• National Medical Commission Act, 2019 — governs NMC's regulatory role in medical practice/ethics.

16. Common Errors / Trap Areas

• Do not confuse this development with legal recognition of same-sex marriage — the Centre explicitly excluded "spouse" status; this is limited to medical decision-making nomination.
• Do not attribute the "nominated representative" concept to a new law — it stems from the pre-existing Mental Healthcare Act, 2017 (Section 14), not any 2026 legislation.
• Do not confuse National Medical Commission (NMC) with the now-abolished Medical Council of India (MCI) — NMC replaced MCI under the NMC Act, 2019.
• Avoid assuming the HC has ruled — as of the article, this is the Centre's affidavit/submission, not a final court judgment.
• Do not conflate this case with the 2023 Supriyo judgment — this is a distinct, subsequent Delhi HC petition (Takkar's case).