Sex requirement for horses upheld by Australian judge

Racehorses must have physical sex for their foals to be considered thoroughbreds, an Australian judge has ruled, upholding an international requirement that prohibits the use of artificial insemination.

Federal Court Justice Alan Robertson yesterday dismissed a bid to make the country the first to allow artificial insemination for thoroughbreds, following a trial that spanned four months and concluded on December 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 legalise 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 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 multi-billion 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, dangerous and prevents him from getting into the business.

Fees for a mating episode have exceeded €250,000, according to breednet.com, a website on the breeding industry in Australia, the world’s second-biggest thoroughbred racing jurisdiction behind the US.

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 being stored 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 race horse Heroicity died at stud in the US 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 said. “I do not feel Heroicity was given a true opportunity to show what he was capable of producing.”

The prohibition of any form of artificial insemination for thoroughbreds has been in place in Australia for over 60 years to prevent fraud and reduce errors in the registration of thoroughbreds, Tonking said. Since horses are now identified by their DNA, that argument no longer has any justification, he added.