Dec. 19 (Bloomberg) -- Racehorses must have physical sex for their foals to be considered thoroughbreds, an Australian judge ruled, upholding an international requirement that prohibits the use of artificial insemination.
Federal Court Justice Alan Robertson in Sydney today dismissed a bid to make the country the first to allow artificial insemination for thoroughbreds, following a trial that spanned four months and concluded Dec. 19, 2011. He cited potential international consequences as a reason for his ruling.
Bruce McHugh, a former chairman of a Sydney racing club, sued thoroughbred authorities to legalize the use of artificial insemination, arguing the ban on the practice was an illegal trade restraint as he seeks to start a breeding business. The suit, which threatened to upset traditions behind horseracing’s appeal to kings, queens, sheikhs and billionaires, according to Tony Bannon, attorney for the defending Australian Turf Club, could have “downgraded” the status of thoroughbred races held in Australia, if upheld, Robertson said.
McHugh had also argued the ban violated the country’s competition and consumer act.
Robertson said both the arguments failed. McHugh can set up a separate register for horses bred artificially, the judge said, so competition isn’t lessened by the practice.
The law requires that the plaintiff must show trade restraint was unreasonable when it was established for it to be illegal. Since the rule was imposed many decades ago, it was reasonable at that time, Robertson said.
“Whether thoroughbreds bred by artificial insemination should or should not be permitted to race” wasn’t a consideration, the judge said. “The application fails on the legal grounds on which it was brought.”
The multibillion-dollar thoroughbred breeding industry sees the world’s most-prized horses being sent around the globe by their owners, including Dubai’s ruler Sheik Mohammed bin Rashid al-Maktoum, as so-called shuttle stallions to physically mate.
McHugh claimed the rule requiring horses to have physical sex makes breeding expensive and dangerous and prevents him from getting into the business.
He is former chairman of the Sydney Turf Club, which last year merged with the Australian Jockey Club to become the Australian Turf Club.
Fees for a mating episode have exceeded $330,000, according to breednet.com, a website on the breeding industry in Australia, the world’s second-biggest thoroughbred racing jurisdiction behind the U.S.
The vast majority of breeders in Australia are small operators, who have an average of three mares and whose voice is being ignored, McHugh’s lawyer Ian Tonking said during the trial. They would benefit from not having to ship their mares to stud farms and gaining access to the sperm of top-rated horses worldwide, he said.
The use of artificial insemination would change the industry into one where a stallion never dies, with semen stored long after a stud’s death, Bannon said.
“Literally, a dead horse is being flogged,” the attorney said.
New Zealand breeder Janice McDonald said her business came to a standstill when her Australian race horse Heroicity died at stud in the U.S. in 2005.
“Being able to use his frozen semen would allow me to continue what I set out to achieve and surely everyone is entitled to have their dreams, not just wealthy folk,” McDonald wrote in an e-mail that she sent to Bloomberg News. “I do not feel Heroicity was given a true opportunity to show what he was capable of producing.”
To be eligible to race, thoroughbreds must be registered in a recognized stud book. The Australian Stud Book dates back to 1878, when the first one was compiled by William C. Yuille, sporting editor of the Melbourne Weekly Times newspaper, according to the organization’s website. The book preserves an official record and ensures the integrity of the thoroughbred breeding industry, the organization said.
Racing associations in other countries also keep stud books. More than 70 stud book authorities are members of the International Stud Book Committee.
The prohibition of any form of artificial insemination for thoroughbreds has been in place in Australia since at least 1949, to prevent fraud and reduce errors in the registration of thoroughbreds, Tonking said. Since horses are now electronically tagged and identified by their DNA, that argument no longer has any justification, he said.
The International Stud Book Committee has always recognized that a challenge to the ban on artificial insemination may occur, it said. Lifting the ban wouldn’t be in the interest of the industry, the group said on its website.
The case is Between Bruce McHugh and the Australian Jockey Club Ltd. NSD1187/2009. Federal Court of Australia (Sydney).
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