Avoiding the Edge - by Eric Mitchell

(Originally published in the August 10, 2013 issue of The Blood-Horse magazine. Feel free to share your own thoughts and opinions at the bottom of the column.)

By Eric Mitchell - @BH_EMitchell on Twitter

By Eric Mitchell At first blush one might expect some concern over at The Jockey Club regarding last week’s ruling in Texas that the American Quarter Horse Association violated federal antitrust laws by banning the registration of cloned horses.

The North American Thoroughbred registry has steadily held the line on requiring all registered horses to be the result of natural cover. In 2002 TJC went the extra step by amending its rules to specifically prohibit cloning.

Proponents of artificial insemination, embryo transfer, and cloning technology, however, have challenged breed registry rules several times in the U.S. and abroad since 2001, alleging violations of antitrust and free-trade laws. They have had some success.

A case in 2002, also against the AQHA, forced the organization to begin registering all foals born by embryo transfer. Previously the AQHA allowed the registration of foals conceived by embryo transfer but only one foal per mare per year. A court found the one-foal rule was an unreasonable restraint of trade, so the AQHA settled with the plaintiff and changed its rule.

In the clone lawsuit the attorneys for rancher Jason Abraham and Amarillo veterinarian Gregg Veneklasen successfully argued that clones should not be excluded from the registry, particularly since the AQHA has already recognized “non-natural breeding techniques” such as artificial insemination.

This point about opening the door to non-natural breeding techniques is where TJC should find solace. It has kept the lid on Pandora’s Box.

Other than to restate its position,  TJC didn’t have much to say officially about the AQHA case:

“The facts involved in the AQHA case are very different from those applicable to the registration of Thoroughbreds and the decision in that case has no bearing on the rules for registering Thoroughbreds. TJC, as an organization dedicated to the improvement of Thoroughbred racing and breeding, believes that the short- and long-term welfare of the sport of Thoroughbred racing and the Thoroughbred breed are best served by the current rules.”

A Jockey Club official did add that antitrust issues are an important element of every decision the organization makes as a matter of course.

Another, more thoroughly tried case in Australia also reinforced the stance against AI.

Down Under, commercial breeder Bruce McHugh, who is former chairman of the Sydney Turf Club, sued the Australian Jockey Club in 2011 on the grounds that prohibiting AI creates a restraint of trade. After a year of intense discovery by both sides, Justice Alan Robertson dismissed the case for lack of evidence.

“The effect on competition and the international consequences, that is…in a world where prohibition was overturned in Australia, the status of Thoroughbred races held in Australia would be downgraded,” Robertson said in his ruling.

And by extension, the value of the Australian Thoroughbred on the international market would be severely damaged by allowing AI, according to an analysis on the equine industry and antitrust written by Brad Keeton, Sam Hinkle, and William Jay Hunter Jr. with the Stoll Keenon Ogden law firm.

Australia is one of 72 member countries in the International Federation of Horseracing Authorities. If AI were allowed, then Australia would have to withdraw from the federation and that would damage the ability of Australian horses to compete internationally, noted the Stoll Keenon Ogden paper. AI would not enhance trade; it would actually have the opposite effect.

“The small breeders are very much aware of how precarious their livelihoods would be in a post-AI world,” Chauncey Morris, CEO of Thoroughbred Breeders Australia, told Thoroughbred Owner & Breeder in 2012 after the case was dismissed. “When AI was introduced to the Standardbred industry, it pushed out a lot of smaller operations.”

By holding the line on natural cover, TJC seems well-positioned to defend itself from challenges for breeding techniques not even imagined when artificial insemination was allowed by the AQHA in 1963. If a registry recognizes clones, after all, what prevents the registration of genetically modified horses? Cloning requires manipulation, which may be considered not that different from gene splicing.

Regardless of what American breeders may think of AI, it appears now to be that first step down a steep and slippery slope; a slope on which the AQHA is gaining speed.

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