News recently spread about the death of 16-year-old Kazakh citizen Sunkar Sabit, who had traveled to India for cancer treatment. According to media reports, his mother is seeking to bring home his cryopreserved sperm, which had been collected and frozen before he underwent chemotherapy.
The case has prompted public debate, with many asking what happens to a deceased person’s stored reproductive material.
Without addressing the specific circumstances of Sabit’s case, the broader question remains: Can a child be conceived using the sperm of a deceased man?
Posthumous reproduction — the use of cryopreserved sperm after a man’s death through in vitro fertilization (IVF) — has been practiced in several countries for years. The procedure, however, raises complex legal, ethical and moral questions.
International perspective
One of the best-known cases involving posthumous reproduction is Astrue v. Capato, decided by the U.S. Supreme Court in 2012.
Shortly after Karen Capato and Robert Capato married, Robert was diagnosed with cancer. Before beginning chemotherapy, he froze his sperm because the treatment could leave him infertile. The couple had already had one child naturally and hoped to have another. They agreed that, if Robert died, Karen would use the stored sperm to conceive.
Robert died in 2002. Karen later underwent IVF and gave birth to twins in 2003. She subsequently applied for Social Security survivor benefits on behalf of the twins. While the couple’s first child qualified, the twins did not.
The U.S. Supreme Court unanimously ruled that children conceived after their biological father’s death were not automatically entitled to survivor benefits. Their eligibility depended on applicable state inheritance law rather than solely on their biological relationship to the deceased father.
Russia has also seen several high-profile legal disputes involving posthumous reproduction. In some cases, the biological grandmother — rather than the deceased man’s spouse — sought legal recognition as the parent of a child born through IVF using her late son’s sperm and a surrogate mother. In certain cases, Russian courts recognized the grandmother as the child’s legal mother and allowed her to be listed as such on the birth certificate.
What Kazakhstan law says
Kursiv.media asked the relevant government authorities and a specialized fertility clinic how Kazakhstan’s legislation regulates posthumous reproduction and whether the procedure is permitted.
According to the responses, a deceased man’s cryopreserved sperm may be used to help his widow conceive, provided specific legal requirements have been met.
The man must have signed a contract with the fertility clinic during his lifetime and provided written consent explicitly authorizing the storage of his sperm and its use for IVF by his wife after his death.
However, Kazakhstan’s laws do not allow posthumous reproduction through a surrogate mother.
Under Article 54 of the Code «On Marriage (Matrimony) and Family,» only legally married couples may enter into a surrogacy agreement. Upon the death of one spouse, the marriage is legally terminated under Article 14 of the code, and the surviving spouse is no longer considered part of a married couple for the purposes of surrogacy. As a result, a widow cannot legally use a surrogate mother under current Kazakh law.
Legal framework
The rules governing assisted reproductive technologies are set out in Kazakhstan’s Code «On Public Health and the Healthcare System.»
Article 146 requires a woman or man to provide informed consent before assisted reproductive technologies may be used.
Article 148 grants citizens the right to cryopreserve reproductive cells. Under Kazakh law, cryopreserved biological material is considered the property of its owner, meaning only the donor can determine how it may be used.
The practical requirements for IVF and cryopreservation are established by Order No. ҚР ДСМ-272/2020 of the Minister of Health, dated Dec. 15, 2020, «On Approval of the Principles and Conditions for the Use of Assisted Reproductive Technologies.»
The regulations require that any procedure related to the freezing, retrieval, or fertilization of reproductive material be carried out only after the patient submits a written application and signs a contract with the healthcare provider.
