If a pair of Texans has their way, the American Quarter Horse Association will be forced to register cloned copies of Quarter Horses and their offspring. And it’s not the only animal-breed registry with a dog in the fight.
The world’s largest horse-breed registry got its start in 1940 with a King Ranch stallion named Wimpy. The name doesn’t exactly conjure fierceness.
Yet the American Quarter Horse Association has mounted fierce defense against a three-year-old lawsuit that challenges the registry’s exclusion of cloned horses. Citing strong member support, the world’s largest horse-breed association has refused to back down on its position that “cloning is not breeding,” and that cloned individuals and their offspring will not be registered.
To date, such exclusion is the norm, not just for equine registries, but also for most other animal registries. Until just over a decade ago, when the first equines were cloned, no one questioned that a pedigreed animal must have a forked family tree, with a biological father and mother to contribute a sperm cell and an egg.
Yet that definition, along with other long-held values, is now at stake in the ongoing lawsuit known as Abraham and Veneklasen Joint Ventures vs. American Quarter Horse Association.
The plaintiffs, a partnering rancher and a veterinarian, contend that AQHA’s refusal to accept clones is in violation of anti-trust law. They’ve already gotten one jury and judge to agree with them.
The accusers won the first battle, with AQHA ordered to register clones; then AQHA won the second battle on appeal. That promptly sent its pro-cloning opponents back to court, with the next-phase outcome yet to be decided.
At present, registration of cloned Quarter Horses is on hold.
With neither side backing down nor running out of legal ammo, this is a fight with potential to be herded all the way to the United States Supreme Court. If the plaintiffs aren’t successful with their current legal parry, they still have the option of asking the high court to hear their case.
The outcome has more than AQHA registration for cloned Quarter Horses at stake. Other associations are watching closely, worrying that they, too, may be forced to accept clones, and that they’ll lose the right to establish and enforce their own registration rules.
“If AQHA loses,” says Steve Taylor, CEO of the Appaloosa Horse Club, Inc., “I assume that most of us with a similar rule would make a change.”
WHAT IT’S ALL ABOUT
The lawsuit isn’t about cloning, per se. The scientific, moral, and spiritual issues of cloning aren’t on trial.
Beneath all the hubbub, the case is about whether the plaintiffs, members of the AQHA themselves, can prove anti-competitive, conspiratorial behavior by the association.
If they succeed, AQHA will have to obey the legal order to register clones and their offspring, and will have to retool, republish, and reprogram registration rules and procedures accordingly.
The legal questions: By banning the registration of clones, did AQHA conspire to restrain trade? Did it attempt to control or eliminate competition in what the plaintiffs allege to be the “market for elite Quarter Horses”?
The lawsuit charges violations of the Sherman Anti-Trust Act. As the first legislation to outlaw monopolistic business practices, the Sherman Act was enacted by Congress in 1890.
Filed in Texas, the current lawsuit also alleges violation of the state’s own anti-trust rules. These are patterned directly after the federal rules, making them the stiffest of all states’ rules, with a history of fierce enforcement by Texas juries and judges.
Among its other activities, AQHA is in the business of recording pedigrees and registering Quarter Horses. It’s done so for 75 years and was founded on that basis.
To date, the Amarillo, Texas-based association has collected records and issued registration certificates for more than 5 million head, worldwide. The money it gets for registrations and pedigree services is one of its significant income streams.
Plaintiff Jason Abraham, member of a wealthy, influential family, has a 39,000-acre ranch in the northeast corner of the Texas Panhandle. Presiding over it from a small town named Canadian, he owns some 2,400 mares that he leases to be recipients for equine embryos and surrogate mothers to the resulting foals.
The other plaintiff, Gregg Venaklasen, DVM, owns Timber Creek Veterinary Hospital in nearby Canyon, Texas. A longtime specialist in reproduction by embryo transfer (ET), he’s considered one of the world’s leading experts in equine cloning. He also sells semen from two cloned stallions.
ET and cloning both require regular access to mares for embryo implantation. Venaklasen gets them from Abraham’s recip-remuda. The partnership creates cloned horses on behalf of ViaGen, the company that holds the patent for how it’s done.
On his website, Venaklasen offers “advanced equine veterinary services for the elite.”
SEND IN THE CLONES
Cloning involves taking tissue cells of an animal, live or dead, and injecting them into a donor egg to make a copy. The process is called somatic nuclear cell transfer, or SNCT. No fertilization by sperm takes place. In horses, the resulting SNCT embryo is placed in the uterus of a recipient mare, which gestates and foals the clone.
The cloning of animals dates to 1997, when a sheep named Dolly was created in Scotland. In 2003, a Haflinger mare was cloned in Italy while three mules were cloned in the United States. AQHA’s registration rule 227(a), banning registration of clones and their offspring, was enacted the following year.
The rule itself didn’t stop more clones from coming over the next 10 years. Quarter Horses have now been cloned dozens of times, with each clone costing about $150,000 to create.
Due to the cost, equine clones aren’t made of the average horse. Instead, they’re genetic copies of superstars.
Some of the top individuals to have been cloned include Royal Blue Boon, a valuable cutting broodmare; Smart Little Lena, one of the most influential cutting sires of all time; Scamper, the 10-time world champion barrel racing gelding owned and ridden by Charmayne James; and Reminic, a dominant sire of cow horses.
Though all these famed Quarter Horses are deceased, their DNA is banked in their live replicas. The clones aren’t offspring, as they don’t have parents, yet they are capable of siring or producing offspring when mated with a horse of the opposite gender.
So far, few cloned horses have been sent to the competition arena. Most are used for breeding. AQHA won’t register them, but the resulting offspring can still compete in cutting, barrel racing, cow horse contests, and other sports that don’t require registration papers.
With the case still in litigation, AQHA’s employees and top stewards aren’t free to comment, nor are the opponents. However, the association’s published position statement on the lawsuit includes nearly 30 points of its argument against the registration of clones.
Among them: AQHA argues that cloning doesn’t advance or improve a breed, because clones are copies of existing horses; the consequences of cloning are not yet clear; it’s impossible to track pedigrees when the DNA of a cloned horse and the original are the same; and a private association of voluntary members should have the right to determine its own rules.
AQHA also claims that 86 percent of its 270,000 members oppose registration of clones.
Al Dunning, a longtime Quarter Horse breeder and highly regarded trainer from Scottsdale, Ariz., is among those with a dissenting voice.
“I feel it’s so important to protect the integrity of the breed that cloning just isn’t something I would want our association to be involved with,” he says. “The issue of accepting clones is not being pushed by the people I know and consider to be horsemen.”
Dunning also expresses a sense of offended values. He says, “No member should ever sue the association to get his way. There are ways to go about it democratically.
“Doing it this way [in court], it comes down to lawyer against lawyer, and it’s just real disappointing. We have so many other places that our membership money should be going, to advance the love of the horse.
“The way I see it, when somebody has to go through the courts, he’s looking for the short-term gain.”
Following the initial jury trial, after which AQHA was ordered to register clones, a number of animal-breed organizations filed “friend-of-the-court” briefs urging the verdict be overturned. The American Kennel Club, the Cat Fanciers Association, and at least six horse registries joined in.
“Our interest in signing on the brief was simply about an association of members being able to write and enforce its own rules,” says the Appaloosa registry’s Taylor.
Billy Smith, executive vice president of the American Paint Horse Association, echoes that. “We felt that the judge’s ruling [to accept and register clones] put all breed associations at risk and in a position where we couldn’t make or enforce our own rules.”
Cindy Vogels, of Greenwood Village, Colo., is a top dog show judge, an exhibitor of Morgan horses, and has bred both dogs and horses. She’s not in favor of opening animal registries to clones.
“Staying miles away from the moral or spiritual questions,” she states, “my feeling is that genetic diversity is healthy, and a lack thereof is unhealthy, for horses and dogs alike.
All breeds were developed out of genetic diversity, and we need to maintain that, to prevent genetic bottlenecks. I don’t understand why we need two of anything.”
Abraham and Venaklasen obviously don’t agree, nor does their cloning clientele.
According to a report published by NBC News, the veterinarian has argued that cloning can strengthen a breed by reintroducing genetics of horses that are either deceased or unable to breed—perhaps because, like the extraordinary barrel horse Scamper, they were gelded.
He’s also said that cloning could help reduce prevalence of certain genetic diseases, allowing breeders to “silence detrimental genes.”
The battle lines remain drawn in the war to register clones.
In January, the U.S Court of Appeals for the Fifth Circuit reversed the original district court decision that found for the plaintiffs. In this second decision, the higher court wrote that the suit’s claims of anti-trust failed, because the plaintiffs’ evidence did not prove conspiracy to restrain trade, and because AQHA is not a competitor in the alleged market for elite Quarter Horses.
However, because the case wasn’t seen by the entire appeals-court bench, attorneys for Abraham and Venaklasen have filed for a whole-bench review. That’s where things stand at this writing.
How will it go? No one can yet say for sure.
There’s this, though. In an anti-trust decision it handed down in 1993, the Supreme Court gave this opinion: “The purpose of the Sherman Act is not to protect business from the working of the market; rather, it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.”