| From Page 1 TBA Victorian
President Mike Becker was more forthright, choosing to attack both Fleming and McKinnon
personally for what he said was "an insult to the industry that has been good to
both."
He went on to say that McKinnon "has shown a blatant
disregard of the industry which has given him his business and reputation by his
actions".
McKinnon described Becker's statement as
"disappointing" and explained that a very significant part of his equine
reproductive practice related to non-thoroughbred horses. Defending his actions as
"perfectly legal". He pointed out that he was merely a contractor to Fleming,
who had been very open about what he was trying to achieve and that Digby, the Proprietors
of the Stud Book (AJC & VRC), the International Stud Book Committee and William Inglis
had been informed about what was going on.
In response to a statement by Becker that "the
emergence of the technology of embryo transfer, artificial insemination and cloning has
evolved rather quickly and encroached on the regulations of an industry not noted for
rapid change", McKinnon pointed out that "the technology has been in place for
many years and had been a regular subject of discussion within the thoroughbred industry.
There has been plenty of time to resolve the issues if people were willing to act."
Echoing Becker's view, Turnley stated "at this stage,
the Thoroughbred Breeding Industry has not adequately debated the advantages and
disadvantages of embryo transfers and a properly formed view has not been reached."
It seems that the industry's hand is about to be forced by
the court action Fleming is contemplating. The whole issue of the prohibition of
artificial insemination as well as embryo transfers could well be decided by the court.
There are a number of other Stud Book regulations which look ripe for challenge on the
basis of restraint of trade. Consider this :-
"A horse will not be eligible for the Stud Book or Non
Thoroughbred Register if it is produced :-
from a natural covering of a mare by a stallion which in
that same covering season was being bred to other mares by artificial insemination (i.e.
was a semen donor)"
or this
"A horse may not be eligible for the Stud Book or Non
Thoroughbred Register if it is produced by a mare which was:-
located on premises where artificial breeding of equines
was practiced during the covering season in which the foal was conceived or in the foaling
season in which the foal was born OR
owned by a person, persons or organisation which practices any form of artificial breeding
in equines."
Both these regulations look to be a gross restraint on a
breeder's ability to breed say standardbreds and non-thoroughbred performance horses by AI
on the same property as he might breed thoroughbreds. And some would argue, just what is
so wrong with AI anyway?
There is no doubt that permitting embryo transfer in
thoroughbreds creates many issues which need to be addressed. Fleming himself recognises
this in a paper he published in support of his actions with Eau D'Etoile. For instance he
advocates that only one embryo be permitted to be transferred each year from each mare. He
also suggests that the mares to be used in this procedure be approved by the Stud Book as
"of considerable significance to the Australian breeding industry."
However, if his legal challenge is successful, it is
doubtful that embryo transfer candidates can be so restricted. If it is a restraint on the
trade of a breeder with a very valuable mare to prevent registration of its embryo
transfer foal, it is equally a restraint on a breeder with a much loved but poorer quality
mare. Similarly if it is a restraint on a breeder to prevent the transfer of one embryo,
how much more of a restraint is it to prevent the transfer of more than one in a season?
Fleming's actions may certainly be considered by some to be
precipitate, but many years of discussions have produced a blanket denial by the
international thoroughbred breeding industry that advances in breeding technology need to
be addressed in a sensible way.
Unfortunately for industry traditionalists, "the Sport
of Kings" cannot continue to exist as a law unto itself as there are precious few
kings left to protect it. Australia is not alone in having Trade Practices legislation. It
is difficult to see how rules made by a body such as the International Stud Book Committee
can override the laws of a sovereign state.
Interestingly Rule 1.2 of the Australian Stud Book does
provide something of an escape route :-
The joint proprietors reserve to themselves and each of
them, and the Keeper of the Stud Book, the right to:
decide what shall, or shall not, be included in the
Australian Stud Book or Australian Non Thoroughbred Register .......and
alter, cancel or waive without notice any or all of the procedures outlined in this
booklet.
It could be argued that approving the registration of
Fleming's embryo transfer foal under Rule 1.2 would put at risk the international
recognition of the whole of the Australian Stud Book. Surely common sense would not allow
the International Stud Book Committee to effectively deregister tens of thousands of
Australian thoroughbreds on the strength of one embryo transfer?
Fleming's court action may yet fail, but he will have many
interested spectators both here and overseas. If he is unsuccessful, there are bound to be
other challenges and sooner or later someone will be successful. It is to be hoped that
the international thoroughbred community can come up with some solutions before the courts
decide it for them. |
