Jonathan Merritt explores the controversial subject of horse cloning for equine sports.
Whilst cloned humans, never mind cloned human athletes may be some way off, equine sport is already there. In November 2015 it was announced that a Chinese and South Korean biotech consortium plan to open the world’s largest cloning ‘factory’ costing an estimated £20.6m in Tianjin, China. As well as animals for food, the operation is expected to ‘mass produce’ animals like police sniffer dogs and also racehorses. This is the latest step in developments that have been taking place for over a decade.
People watch sport for a variety of reasons, but very near the top of the list is the desire to be amazed by hitherto unimagined feats of skill, strength and stamina. Sports broadcasters know this, and it feeds into discussions about broadcasting rights, sponsorship, merchandising and the other commercial aspects of sport, which generate the eye-watering sums in some disciplines at the elite level.
In order to reach these heights of sporting endeavour science is often employed, sometimes legally sometimes not. In any event it may be that doping conundrums are going to be side-lined as cloning, at least in sports involving horses, comes to the fore in the future.
These are important issues, as although equestrianism does not attract the audiences it once did, even so a resurgence in interest has been noticed after Equestrian Team GB medalled so convincingly at London 2012. Beyond that, according to the British Horse Industry Confederation, the whole sector contributes to the UK economy annually more than farming does at £7bn. In addition, horse racing cannot really be considered in isolation from the gambling industry and accountants Deloitte, on behalf of Ladbrokes, found that gambling contributes around £6bn to ‘UK plc’ with horse racing relying on betting for 15% of its annual turnover.
Consequently, the importance of the sports horse to modern society should not be underestimated. Indeed for some academic commentators and even sports law practitioners this is an emerging, non-human, incarnation of the ‘athlete-celebrity’ phenomenon, based on the fame some champion animals achieve.
Professor Ian Wilmut and others’ work on ‘transgenesis’ was based on the introduction of an external gene into an organism and ultimately culminated in the arrival of ‘Dolly’ the sheep in 1997. In due course when it became apparent just how far this technology could reach, President Clinton barred any US federal funding from going to human cloning projects. The President further established a ‘National Bioethics Advisory Commission’ to look at the issues of ethics, science, and law that sprang from human cloning. In the same vein, in July 2002 this body met to discuss for the first time potential genetic enhancement in human sport.
The World Health Organisation and the Roman Catholic Church agreed with the US President’s stance as did almost all US states and nineteen European countries. None would sanction human cloning on a variety of grounds, ethical, religious political and legal. Whether these legislative and doctrinal barriers have any scientific or even rational bedrock is an open question, but the weight of academic and practitioner opinion is that legal challenge to the ban is a non-starter for the foreseeable future.
However law professor Simon Gardiner is probably right to speak of the lurking ‘spectre’ of genetically engineered super athletes, just not human ones just yet. There have been openly acknowledged cloned horses since a genetically engineered mare of the Halflinger breed was born in 2003. At time of writing neither the British Horse Racing Authority nor the Fédération Equestre Internationale which governs Olympic horse sport explicitly bar clones in competition.
There is a paradox apparent here, doping is a controversial subject for those competing with horses, even more so, inadvertent doping. In 2008, a number of competitors at the Beijing Games lost their medals because of careless use of a horse liniment containing capsaicin (derived from chilli peppers) which is a prohibited substance. In 2014, Her Majesty Queen Elizabeth lost the winnings and placing her 2013 Royal Ascot Gold Cup winning horse Estimate had earned from a later race because of feed contaminant causing a positive test result for morphine.
Ironically, genetically engineering an entire animal from hoof to ear tip carries no sanction at all, but a trace of contaminant, even if not performance enhancing, can have catastrophic consequences. Staying with horse racing, the enormously successful Australian racehorse Black Caviar may have been cloned in 2014, but those reports are difficult to substantiate. If the advantages of a much larger than usual lung capacity and overall frame are replicated in a foal however, then success at the racetrack for another generation is all but guaranteed.
In elite level equestrianism though, the issue is in the public domain, and a clone derived from champion horse Gem Twist is to be allowed to compete in international show jumping. It seems then that the legal and ethical dilemmas to which Professor Gardiner refers are most likely to surface first with regard to non-human athletes rather than the human variety. There is the significant issue of whether cloning is cheating or not to surmount first. Following on from that, whether the regulations designed to maintain integrity in the more than eighty equine based sports worldwide can cope with the advent of this technology needs to be considered.
Leaving the above points to one side however, intellectual property problems are likely to arise as well. At the moment the case law is quite clear, under the Patent Act 1977, patenting a cloned animal under UK law is not possible. Plants per se cannot be patented either but there is an inconsistency in that it is acceptable under the Plant Varieties Act 1997 to protect the intellectual property that went into creating a new species of plant.
Despite these points, a number of biotechnology patents have been successfully applied for by companies using new scientific processes in animal cloning research. These patents are in the main for the fundamental genetic research tools rather than the animal that results from the process however. That said the ‘Oncomouse’, a mouse specifically designed at a genetic level to aid in cancer studies has received a patent under the European Union patent regime. Some legal researchers believe that these developments show a direction of travel towards animal patents becoming legal one day. This would sweep away the irrational distinction between animals and plants made by the law in this area.
Looking beyond the EU, this is likely to be a slow process however if recent case law is anything to go by. In May 2014 the US Federal Court refused to patent ‘Dolly’ and in Australia things have not gone smoothly either. Despite an initial patent being granted to Myriad Genetics Inc. for the BRCA1 breast cancer gene, that award has been set aside on appeal in October 2015 as the gene was not found to be an invention capable of being awarded a patent. If however, the slow but perceptible movement continues towards the day when a patent is routinely awarded for genetically engineered animals, then the consequences for equine sport could be alarming.
Currently champion stallions can be used for breeding purposes and command a high price for that service. The results are not guaranteed though, and a lot is down to the quality of the mare. If a prize winning horse is cloned however and it is possible to receive patent protection for that clone, then the bloodline from that animal could be far more closely controlled by the patent owner than is possible with traditional breeding practices.
This could mean particular animals and their clones dominating individual equine sports in a very unhealthy monopoly situation indeed.