There is a saying which goes "all progress is the result of unreasonable men". One of Australia's most prominent breeders, Jim Fleming of Tyreel Stud, has taken a step which many in the industry believe to be most unreasonable. He has dared to breed a foal from his outstanding mare Eau D'Etoile and have it carried to birth in a surrogate mare, knowing full well that the resulting foal would probably not be registered under existing Stud Book Rules.

Eau D'Etoile is arguably one of the best mares in the Australian Stud Book. By Sir Tristram, she is the dam of Group winners Filante, Bint Marscay, Temple Fire, Eau D'Escay and Kenny's Best Pal. Tragically she has been unable to carry a foal full term since a ceasarean section in 1997.

In the 2000 breeding season, Fleming consulted noted equine reproductive expert Angus McKinnon of the Goulburn Valley Equine Hospital, who among other achievments had been responsible for the world's first horse born from in-vitro fertilisation.

Mindful of the Stud Book regulations prohibiting artificial insemination, Eau D'Etoile was served by Sunline's sire, Desert Sun who stands at Eliza Park Stud, owned by Jim Fleming's son Lee. On two occasions, the mare produced an embryo which did not survive due to the scarring in her uterus. On the third try, McKinnon recommended transferring the embryo to a surrogate mare. This procedure was adopted and a live foal was born from the surrogate on 17th November 2001. Subsequent DNA testing has proved that genetically the foal's sire is Desert Sun and its dam is Eau D'Etoile.

Unfortunately for Fleming, when he first notified John Digby, the Keeper of the Stud Book, in March 2001 and subsequently after the foal's birth, that it had been produced via embryo transplant, the response was that the foal would be unregisterable.

The particular Stud Book regulation that Digby invoked is Rule 1.9 :-

"A foal is only eligible for inclusion in the Australian Stud Book or the Australian Non Thoroughbred Register if it is the produce of a natural service, which is the physical mounting of a mare by a stallion, and a natural gestation takes place in and delivery is from the body of the mare in which the foal is conceived."

One could  take the view that the Stud Book Rules are primarily designed to ensure that registered thoroughbreds are of verifiable parentage. The recent introduction by the Australian Stud Book of DNA testing is able to prove conclusively both parents of any horse. Therefore it is arguable that regulations which relate primarily to provable parentage are not necessary if DNA testing can establish the true genetic identity of each animal born. On this basis alone, a fair proportion of Stud Book Rules could be eliminated.

In this case, there appears to be no dispute that Desert Sun covered Eau D'Etoile by natural service. Digby's argument is that there was no natural gestation in the mare and delivery was not from her body.

A smart lawyer may perhaps be able to make a case that natural gestation did in fact take place in the body of Eau D'Etoile (for a period of 7 days according to McKinnon). The foal was "delivered" from Eau D'Etoile to the surrogate at that point and the rest of the pregnancy took place in the surrogate. Nowhere in the Stud Book Rules does it specifically refer to the whole of the gestation period having to take place in the one mare.

Tyreel Stud manager John Vincent pointed out that studs often introduce surrogate or foster mothers shortly after birth when the natural mother has died or suffered injury during foaling. Except for the blood supply which the natural mother supplies during pregnancy, practically everything else the foal requires is provided by the foster mare including the all important colostrum. Fostering is perfectly acceptable and there is no Rule which even mentions it in the Stud Book regulations.

Rather than rely on fine legal interpretation of the Stud Book Rules however, Fleming's view is that Rule 1.9 is an unreasonable restraint of his ability to trade as a thoroughbred breeder and thus in breach of the Australian Trade Practices Act. The matter seems destined to end up in court as the Australian Stud Book says it is obliged to observe the Rules of the International Stud Book Committee, which prohibit the use of artificial breeding techniques. The potential conflict between Australian Federal law and the "gentleman's agreement" of the ISBC looks set to make a fascinating legal battle, which has the potential to blow the winds of change through the time honoured customs of the global thoroughbred industry.

Predictably, Fleming's actions have attracted criticism from the Australian breeding industry. Richard Turnley, President of Thoroughbred Breeders Australia said that the TBA opposed the registration of the embryo transfer foal :-

"The rules adopted by the International Stud Book Committee do not permit the registration of foals that are born as a result of an embryo transfer and as the Australian Stud Book is a member of the International Stud Book Committee it is bound by these international rules. If the Keeper did decide to register this foal the decision would jeopardize the international recognition of the Australian Stud Book and all the horses in it."

Ironically, he went on to point out that John Digby himself had "recently forwarded a discussion paper on the subject of embryo transfers to the International Breeders Meeting held in Kilkenny, Ireland. The meeting ..... unanimously rejected any proposals to register any foal born as a result of an embryo transfer and this motion was forwarded to the International Stud Book Committee who also confirmed that the rules would remain unaltered."

One can only assume that Digby's paper was prompted at least in part by his knowledge of Fleming's project.

On a more conciliatory note, Turnley stated :-

"It must be noted that the TBA is not opposing the registration on the basis that there is anything inherently wrong with the technique of embryo transfers This technique is widely and successfully carried out with other animals."

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Bill Saunders and his wife Berni run Cyberhorse. News items and other information can be submitted to them at editor@cyberhorse.net.au