Courts May Settle Artificial Insemination Debate

Published in the Jan. 26 issue of The Blood-Horse
Thoroughbred breeders who are happy with the industry's staunch opposition to artificial insemination and embryo transfer should not get too comfortable.

"Don't think forever is forever," warned D. Barry Stone, legal counsel for the American Quarter Horse Association, which has been sued over a rule permitting only one foal conceived by embryo transfer to be registered per year. "The rules are sanctified because a lot of people have worked hard on them. But it ain't necessarily so."

Pending legal actions against the AQHA and The Jockey Club have the potential to wrest from breed registries control over their own rules.

Thoroughbred breeders have debated for decades the pros and cons of the industry's ban on artificial insemination (AI). Supporters of AI say it would make breeding more affordable, i.e., breeders wouldn't have to pay for shipping and board to breed to an out-of-state stallion. They also say AI is safer to handlers and horses, protects against the spread of disease, and is already used by other major breeds. AI's opponents say it would allow breeders to focus on a relatively few popular stallions, which would dramatically reduce genetic variability. As the gene pool became more shallow, the enhancement and perpetuation of genetic defects would increase. Thoroughbred registries worldwide ban the practice.

Those arguments, however, could take a backseat to issues of free trade.

"We live in a culture that likes the underdog and likes competition," Stone said during a seminar at the University of Arizona Symposium on Racing in December. "We also live in a litigious age. If you mix that together, the message is 'don't be too proud.'"

The escalating potential for courts to shape breed registry rules is not limited to the United States.

Prominent Australian breeder Jim Fleming is considering legal action against the Australian Jockey Club because he wants to register a foal conceived by embryo transfer out of his mare Eau d'Etoile, a producer of three group I stakes winners including a champion.

"If the Australian Stud Book refuses to register my foal, which I expect they will, I will commence legal action," Fleming told The Australian Financial Review. The suit will be based on restraint of trade as grounds for litigation.

"I am not looking for any unfair advantage, simply the opportunity to breed and obtain progeny from my mare," Fleming said.

Back in the U.S., The Jockey Club spokesman Bob Curran said he could not discuss issues related to the organization's own court case involving artificial insemination, and limited his comments regarding how litigation may shape the rules.

"To talk about anything the courts may or may not do in the near or distant future is speculation and we prefer not to speculate," Curran said. "We are following the other cases."

Curran did reaffirm The Jockey Club's commitment to keeping AI and embryo transfer banned.

"As we have said before, The Jockey Club considers maintaining the long-term viability and genetic diversity of the Thoroughbred breed to be one of its most important responsibilities," Curran said. "The rules, many of which have been in existence in one form or another for a very long time, reflect that belief. They also reaffirm our commitment to ensuring the integrity of the American Stud Book."

The Jockey Club's position was backed by those attending the International Breeders' Meeting held last August in Kilkenny, Ireland. Representatives from 14 countries or regions voted unanimously to reject any proposal to register Thoroughbred foals conceived through embryo transfer or AI, and to help fight any legal challenges wherever they appear.

There is precedent for legal action shaping registry rules.

Around the late '70s, the United States Trotting Association attempted to restrict the number of mares that could be bred to a stallion in a given year. The USTA has allowed AI since the late 1950s, but some industry officials wanted to curtail the overuse of a relatively small segment of stallions by limiting their books.

"The rule was passed and set to take effect in a future year, but it was rescinded before it took affect," said Bob Luehrman, USTA registrar. "The rule was eliminated because of the threat of lawsuits."

On Trial
All eyes are on the AQHA's case because it has already received a judgment. On Jan. 19, 2001, 251st District Judge Pat Pirtle ruled that the AQHA's embryo transfer rule violated the Texas Free Enterprise and Antitrust Act of 1983. The case against the association was brought by cutting horse breeder Kay Floyd and a half-dozen other breeders who believe the AQHA should register all the foals resulting from an embryo transfer instead of limiting it to one per year.

Embryo transfer is a technique by which multiple eggs are collected from a mare, fertilized artificially, then implanted into a second, surrogate mare. The AQHA adopted the embryo transfer rule as a way for breeders to get more progeny out of older mares who were still ovulating but not healthy enough to carry a foal to term. The restriction of one foal per year was adopted to be fair.

"The AQHA is adamant about the rule because embryo transfer is expensive and it does not want to give control to a small number of wealthy breeders," Stone said.

Both sides of the AQHA suit may meet in March with a court-appointed mediator and try to reach a resolution. If they don't meet or can't compromise, then the case is scheduled to go before a jury during the first two weeks in June, according to Stone.

Luehrman is watching the AQHA case closely because he knows the USTA could face similar challenges if the association loses. For example, the USTA allows the use of frozen semen, but if a stallion dies a breeder can only use the semen for the rest of that calendar year and then must throw the remaining semen away. A ruling against the AQHA could open up a challenge to the USTA rules.

"Is there concern? Sure, but I don't know what the answer is," Luehrman said. "Our rules are for the betterment of the breed, not economic reasons. But if the courts rule against us we're bound."

The Jockey Club's case involves a Pennsylvania Thoroughbred breeder named Lauren Efford who at one time owned four reportedly rare registered Palomino Thoroughbreds. The foals, which were bred between 1997 and 1999, were initially registered as bred by natural cover. In 2000, Linda and Milynda Milam of Red Fox Farm near Bryan, Texas, who owned the stallion Efford bred her mares to, notified The Jockey Club that Efford's papers were wrong. They corrected the registration papers to show the horses were bred by AI, and The Jockey Club revoked Efford's papers. Efford claims the Milams changed the papers to drive her out of business, but Milynda Milam said she was correcting what should have been done before. Milam said she could not discuss the details because of the pending legal action.

"I can tell you we have been completely forthcoming with The Jockey Club," Milam said.