Published May, 2012

One of the hot topics discussed during the 27th Annual University of Kentucky Conference on Equine Law, held May 3, 2012, in Lexington, was the legal implications of cloning and embryo transfer in the horse industry. While the legalities of these topics are not discussed frequently in Kentucky, the center of Thoroughbred breeding that requires live cover, they are issue becoming increasingly prevalent in the sport horse industries.

During the "World of Cloning and Embryo Transfer Issues in the Equine Industry" presentation, Lewis T. Stevens, an attorney from Fort Worth, Texas, first addressed the legal issues arising from cloning. For instance, three clones of Smart Little Lena, an all-time leading cutting horse sire, are currently standing at stud. In addition, frozen semen from the original Smart Little Lena is still circulating. One of the problems with standing these clones at stud is that current DNA testing cannot distinguish the foal of a deceased stallion's frozen semen from the foal of a live clone stallion. This becomes an issue because the American Quarter Horse Association (AQHA) does not permit the registration of any horse produced by the cloning process, which includes the foals of a clone. Cloning continues, however, because certain performance associations, such as the National Cutting Horse Association, allow unregistered horses and clones to participate in competitions.

Stevens then discussed a current case involving cloning that is making headlines. Last month Jason Abraham, a Texas rancher who owns several Quarter Horse clones, and his related entities filed a lawsuit against the American Quarter Horse Association in federal court in Texas alleging violations of the Sherman Antitrust Act as well as the Texas Business and Commerce Code. Abraham claims that breeders can use cloning to reduce genetic diseases in horses and to improve the gene pool. A number of genetic diseases, such as hyperkalemic periodic paralysis (HYPP) and hereditary equine regional dermal asthenia (HERDA), greatly affect Quarter Horses, and Abraham and others claim that cloning can help alter those genes, reduce disease incidence, and clean up the gene pool. Abraham claimed that the AQHA is unfairly restricting competition, driving up horse prices and diminishing cloned horses' value by controlling and limiting the supply of high-quality registered Quarter Horses. At the time of the conference, the AQHA had not yet answered the complaint.

Shifting the focus from cloning to embryo transfer, Scott Bennett, DVM, of Equine Services in Simpsonville, Ky., provided a short background on the medical techniques used in embryo transfers and some of the litigation history behind this science. Again, this litigation centered around the AQHA, which prior to 2004 limited registration to one foal per mare per year. With embryo transfers, mares are capable of producing several foals a year and owners might have to choose which foal to register. However, in 2004, as a result of a lawsuit brought by Kay Floyd and other breeders, the AQHA changed the rule to allow for multiple foal registrations per mare per year. In that lawsuit, the court determined the one foal per mare per year rule violated antitrust laws because the AQHA was willing to register one foal out of a mare and not others, which is anticompetitive. The AQHA settled with the breeders and now allows for registration of multiple foals per year as a result of embryo transfers.

Bennett went on to discuss the purpose of embryo transfer, which he says he supports. The greatest benefit he discussed is that embryo transfer allows desirable bloodlines to proliferate. Using natural birthing methods, a mare must no longer be competing to carry a foal to full term. With embryo transfers, a highly competitive mare that is still sound and competing even later in life can produce foals. This allows for the highest quality bloodlines to continue without cutting short a mare's competitive career. Additionally, this helps successful mares that might have uterine or cervical disorders that preventing them from carrying pregnancies to continue to breed.

Both Bennett and Stevens are interested to see where the Abraham lawsuit heads and how this will affect that AQHA and other breed registries.

Katherine W. Ross is an associate at the equine law firm Regard Law Group PLLC, in Lexington.