Maternity leave under surrogacy

I am a director of human resource at a certain company in Tanzania. One of our employees has requested guidance from my office regarding surrogacy arrangements and the relevance of employment standards in Tanzania. The questions are: who is entitled to maternity leave under the surrogacy arrangements? What does the law say insofar as breastfeeding hours are concerned? What is the position of law regarding these aspects? Kindly provide legal guidance.

MM, Dar es Salaam

This is among the intriguing questions we have received thus far. It is noteworthy at the outset that all employment standards including leaves in Tanzania are provided under the Employment and Labour Standards Act, Cap. 366 [R.E.2023] (the Act). It is noted further that while the world now witnesses surrogacy arrangements, the Act was drafted with traditional childbirth in mind and neither expressly nor implicitly address surrogacy arrangements. In this regard, our response is grounded on two attributes: what the law expressly provides and the flexibility that is intrinsic in the labour law framework in Tanzania that would accommodate a private arrangement between employer and employee.

Regarding maternity leave, in terms of section 34(6) of the Act, an employee is entitled, within 3 years, to at least 84 days paid maternity leave; or 100 days’ paid maternity leave if the employee gives birth to more than one child at the same time. Review of this provision suggests that maternity leave is intended to take care of an employee who has given birth. As such, a surrogate mother will be entitled to maternity leave regardless of the surrogacy arrangements because the truth is that she has given birth. In our view, this right is not automatically available for the legal mother. However, considering that the employee, though has not given birth, becomes a newborn’s legal parent and assumes full time care of the newborn from birth, there could be reasonable grounds, to accord this nursing mother some time for the care of the baby.

Regard the breastfeeding hours, section 34(10) and regulation 15 of the Employment and Labour Relations (General) Regulations, 2017 (the Regulations) entitle an employee who is breastfeeding a child to 2 hours per day of breastfeeding for a period of not less than 6 consecutive months after maternity leave. Our review of this provision suggests breastfeeding break is intended to take care of the child’s health. It is therefore directed to the child, and not necessarily the mother’s health. Although it is linked to an employee’s maternity, the fact that an employee is nursing a child would invite the employer to treat the situation as exceptional and accord the legal mother a 2 hour break for feeding the child, whether it is breastfeeding or any other means used to feed the baby.

In summary, in our opinion, the surrogate mother is entitled to statutory maternity leave on grounds of pregnancy and childbirth. Strict interpretation of law may suggest that the legal mother is not entitled to maternity leave because the law appears to peg it on pregnancy and post-partum recovery. Equally, the legal mother is not clearly entitled to breastfeeding break which is also connected to maternity leave and nursing the child. However, based on the aforementioned reasoning, we opine that there are formidable grounds for a Court to rule in favour of the legal mother both for maternity leave and breastfeeding breaks.

Seat and place of arbitration

I am a chief operations officer at a certain company in Tanzania. Our company is intending to conclude a certain commercial contract with a South African company. We have allowed our internal lawyer to review the contract and one of his comments is that our arbitration clause is not clear, for it confuses place and seat of arbitration. We are not sure if these are different and, if yes, whether the difference has any significant implication on the arbitration proceedings. Kindly advise.

DJ, Arusha

Thank you for your interesting question. Although we have not read your arbitration clause, we can still clarify the point. It should be noted that in a contract containing arbitration clause, it is accepted that there could be multiple applicable laws. First, the substantive law, which is applicable in construing the substantive provisions of the underlying contract. Secondly, the law governing arbitration (internal lex arbitri) which governs certain procedural aspects of arbitration such as appointment of arbitrators, commencement of arbitration proceedings, hearings and proceedings of the arbitral tribunal, and the formal requirements of the award. These are in fact internal rules of the parties. However, the parties may opt to adopt the available modal arbitration rules such as UNCITRAL Arbitration Rules. Third, the curial or procedural law (external lex arbitri) which governs the external relationship between the arbitral tribunal and the Courts, concerning the exercise by the Courts of their supervisory and support jurisdiction to the arbitral tribunal on matters such as granting of interim and preservative orders, securing the attendance of witnesses, removal of arbitrators and enforcement of the award.

In international arbitration law and practice, the jurisdiction that supplies the procedural law that defines the extent to which local Courts will involve themselves in the arbitration proceedings becomes the seat or arbitral seat of arbitration. Section 8 of the Arbitration Act of Tanzania defines seat of arbitration as juridical seat of arbitration designated in accordance with the law applicable on matters that are subject of the arbitration; by the parties to the arbitration agreement; or by any arbitral tribunal or other institution or person vested by the parties with powers in that regard.

As such, while the country that hosts arbitration hearings becomes a place of arbitration, the country that becomes a juridical or legal home of arbitration is a seat of arbitration. Seat of arbitration is a legal construct, not a geographical location. A country of seat of arbitration supplies the law that determines the extent to which national Courts will have supervisory jurisdiction over arbitration, nationality of award, and how the award may be challenged.